Citation: 2, MLR(1997) (AD) 96, 1, MLR (1996) (AD) 75, 2, MLR(1997) (HC) 295, 4, MLR (1999) (AD) 140, 5 MLR (2000) (AD) 237, 1, MLR (1996) (HC) 228, 1,MLR (1996) (HC) 264, 2, MLR(1997) (HC) 183, 5 MLR(2000) (AD) 312, 5 MLR(2000)(AD) 323, 5 MLR (HC) 44, 1, MLR (199

Case Year: 1985

Subject: Abandoned Buildings (Supplementary Provisions)

Delivery Date: 2018-03-31

Abandoned Buildings

(Supplementary Provisions) Ordinance 1985

Section 5— Presumptive value of enlistment of abandoned property-

A building which was not occupied, managed or supervised by the owner at the time when the P.O. 16 of 1972 came into effect, became abandoned and vested in the Governme nt by operation of law and the enlistment of the building in the "Ka" list has presumptive value" of correctness unless such presumption is rebutted by contrary proof.

Government of Bangladesh Vs. Ashraf Ali & another. 2, MLR(1997) (AD) 96.

Section 5(l)(b)— Decree of specific performance of contract is no bar to enlistment—

The Court has complete power in its discretion to refuse specific performance of contract if it is opposed to statute or an attempt to evade a statute like P.O. 16 of 1972. As provided in proviso (b) a suit or appeal or application pending in any court in which the vesting in or possession of Government -building as abandoned property under P.O. 16 of 1972 has been called in question praying for return, restoration or transfer by the Government or by any officer to any person shall operate as bar to the inclusion of such building in list "Ka". Decree of specific performance of contract cannot be pleaded as bar for inclusion of the building in the list because such a decree does not determine title and possession of the property in relation to the parties to the contract.

CQM.H. Md. Ayub Ali Vs. Bangladesh & others. 1, MLR (1996) (AD) 75.

Section 5— Citizen of Bangladesh-Abandoned property— when can be treated as such—

A person who is a permanent resident of Bangladesh and never left the country and accepted citizenship of any other country, shall be deemed to be a citizen of Bangladesh and his/her property cannot be treated as abandoned property under P.O. No 16 of 1972.

Akhtari Begum and another Vs. Court of Settlement, and another. 2, MLR(1997) (HC) 295.

Section 5— Service of notice as to enlistment of abandoned Property—

Before enlistment of abandoned building prior notice under section 5 is a condition precedent. When no such notice was served and the occupant was not asked to handover possession of the building, the so called enlistment is not a valid enlistment and as such the petitioner was not required by law to go to the court of Settlement for remedy.

Bangladesh represented by the Secretary Ministry of Works and others Vs. Helaluddin Ahmed. 4, MLR (1999) (AD) 140.

Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972)—

Section 7(2)— Government has no obligation to show the basis of inclusion of building in the list of abandoned property— Abandoned Buildings (Supplementary Provisions) Ordinance 1985—

Section 5- Presumption of correctness of the list of abandoned building—

The onus lies upon the petitioner to prove that the property included in the list is not abandoned. Government has no obligation to show the basis of the list. Unless the contrary is shown the "Ka" list has presumption as to its correctness. Decree of specific performance of contract is not bar for inclusion of abandoned building in the "Ka" list as the title to the property is not determined by such decree. Certificate issued by the Works Ministry that the disputed building is not abandoned property, is sufficient to rebut the presumption.

BangladeshVs.Shajahan (Md). 5 MLR (2000) (AD) 237.

Section 6(l)(b)- Inclusion of buildings in "Kha" list—Declaration of deed as void on ground of defrauding—

Inclusion of buildings in "Kha" list of abandoned properties without notice to surrender possession thereof and merely on survey report is illegal being contrary to the provisions of section 6(l)(b) of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985. Defrauding Government revenue in registering transfer deeds is no ground for declaration of the deed as void. The remedy lies in impouding the deeds under the Stamp Act.

Mahammad Helaluddin mia & others Vs. Chairman Court of Settlement 1, MLR (1996) (HC) 228.

Section 7— Release of abandoned property— Limitation—

Limitation as to the release of property from the list of abandoned property when there is no basis whatsoever for such enlistment is no ground for rejection of the prayer of the applicant. When the property in question does not assume the character of abandoned property it cannot be treated as abandoned property. Such an action is violative of the fundamental rights guaranteed under article 31 of the Constitution.

Md. Abdur Rouf Vs. Government of Bangladesh and others. 1,MLR (1996) (HC) 264.

The Abandoned Buildings (Supplementary Provisions) Ordinance, 1985— Section 7(3)— Notice requiring the occupiers to vacate is mandatory—

Every citizen's right to property is guaranteed under article 42 of the Constitiition. Service of notice under section 7(3) of the Ordinance requiring the occupiers to vacate the possession of the building is mandatory provision of law. When the owner of a building has been in possession of the building personally and through tenants and when no notice under section 7(3) has been served, the inclusion of the building in "Kha" list of abandoned property is illegal.

Lalima Begum and others Vs. Chairman Court of Settlement 1st Court Dhaka-2, MLR(1997) (HC) 183.

Abandoned Property (Control, Management and Disposal) Order 1972 (P.O. 16 of 1972)—

Section 7— Court of Settlement is appropriate forum for adjudicating as to whether a property is abandoned or not—

Relief available in the Court of Settlement is an equally efficacious relief. Whether a properly is abandoned or not involves disputed question of fact which cannot be decided by the High Court Division in writ jurisdiction by-passing the jurisdiction of the Court of Settlement.

Bangladesh and another Vs. Habib Zamil. 5 MLR(2000) (AD) 312.

Section 7— Release of property from list of abandoned property on the basis of deed of gift—

Deed of gift even though registered does not become valid so long the same is not acted upon by delivery of possession of the property. In case of gift by husband to wile living together in the same house the gift may be deemed to have been acted upon by mutation of name of the donee in the municipal holding, payment of tax, rents and handing over the original deed to the donee. A building cannot be released from list of abandoned property on the basis of a deed of gift which was merely registered.

Bangladesh represented by the Secretary, Ministry of Housing & Public Works Vs. Mrs. Shirely Anny Ansari 5 MLR(2000)(AD) 323.

Section 7- Court of Settlement cannot decide title of the property—

Since the Court of Settlement is riot a Civil Court, it cannot decide title of the property. When the Government did not serve notice u/s 5 (1) of the Ordinance and no possession of the building in question was taken over and on the other hand the petitioner got deed of agreement and decree of the Court in pursuance thereof, the Court of Settlement was not justified in dismissing the case of the petitioner.

Yakub Mia (Md.) Vs. Chairman, 1st Court of Settlement, Dhaka & others. 5 MLR (HC) 44.

The Abandoned Buildings (Supplementary Provisions) Ordinance 1985—

The President's Order No. 16 of 1972—Court of settlement— contempt of court—

The Court of Settlement has not been given any power to punish any person by contempt proceedings when such person defies its order. The inadequacy of the law is that there is no rules or procedure to enforce its order.

Hosne Ara Khanam Vs. Government of Bangladesh- 1, MLR (1996) (HC) 220.

Abandoned Properties (Suppli-mentary Provision) Regulation, 1977 (VII of 1977)-

Taking over or vesting of any property as abandend shall not be called in question by any court on any ground whatsover. Further claim for compensation is also barred. The position being so it would be just knocking one's head against a stone wall if he seeks for any redress in a court which was available to him prior to the promulgation of the Regulation.

Halima Khatun VS. Bangladesh-30 DLR( 1978) (SC) 207.

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (Ord. LIV of 1985)—

Sections 5 and 6- Validity of enlistment of property as abandoned-

Before the P.O.No. 16 of 1972 came into effect on 10-3-1972 the disputed building was requisitioned on 16-2-1972. The validity of enlistment of property as abandoned and the publication thereof in the official Gazzette hinges upon either of the two pre-conditions- one is that possession of the property abandoned has been taken over or that notice for surrendering or taking over possession under P.O.No. 16 of 1972 has been issued. Such condition having never been fulfiled, section 5 and 6 of the Ordinance No. LIV of 1985 have no application to the disputed building.

Md. Zaher Vs. Bangladesh. 42 DLR(HC) 430.

Section 7- Bar to invoke writ jurisdiction before seeking remedy in the Court of Settlement—

The Court of Settlement has been given the power to exclude the disputed property from the list of abandoned properties in appropriate case under P.O.No. 16 of 1972 providing alternative forum for complete relief. The petitioner, therefore, can not invoke the writ jurisdiction of the High Court Division without exhausting the remedy provided for in the Ordinance No. LIV of 1985.

Begum Lutfunessa Vs. Secretary, Ministry of Home Affairs & Others- 41 DLR (HC) 193.

Sections 7 and 9- Validity of the order of Court of Settlement when it is not fully constituted—

Law provides for the constitution of the Court of Settlement with three members. When any of its member is absent the order passed by the other two members is not lawful. Unless an order is passed by a properly constituted court, it is no order in the eye of law and has got no legal validity even if it is otherwise proper.

Fatirna Begum Vs. Bangladesh- 42 DLR (HC) 342.

Section 7- Court of Settlement not to decide title—

Court of Settlement is not a court having jurisdiction to decide title of the contending parties. It is vested with the jurisdiction only to decide whether the disputed property is abandoned property or not.

Government of Bangladesh Vs. Chairman, Court of-Settlement 50 DLR (AD) 93.

Section 7- Decision given by Court of Settlement not properly constituted—

If the court of settlement was not properly constituted the only resultant conclusion is that the matter was not legally disposed of by that court and should be taken to be pending.

Hasina Khatun and others Vs. Bangladesh & Others. 48 DLR (AD) 13.

Section 7- Decision of the civil court is binding upon court of Settlement and the party as well—

The decision of the civil court with regard to the nature of the property and plaintiffs claim thereto is not only binding upon the present petitioner but also upon the court of Settlement. Moinuddin (Md.) Vs. Bangladesh and another- 48 DLR(AD) 56.

Section 7(3)- Inclusion of property in list of abandoned property without notice constitutes denial of natural justice—

When there is nothing on record to show that the petitioner was ever asked to show any cause about the inclusion of the property in the list of abandoned property or to surrender the same, there is definitely the denial of the right of natural justice to the petitioner.

Nasir Has sain ( Md.) Vs. Bangladesh and others. 49 DLR (HC) 557.

Section 10- High Court Division not a court of appeal against judgment of Court of Settlemnt—

The High Court Division in exercise of its Writ jurisdiction can not sit as a court of appeal over the judgment of the Court of Settlement and resettle the question of facts. Mustafa Kamal (Md.) Vs. First Court of Settlement and others. 48 DLR(AD) 61.

Section 10(6)—Disputed property stands excluded from the list of abandoned property from the date of the decision—

There is no provision in the Ordinance for issuing notification excluding the property from the list after the decision of the Court of Settlement. The legal position is that the property in question stands excluded from the list of abandoned properties from the date of the decision of the Court of Settlement notwithstanding whether the Government makes any such notification or not.

Akbor Hossain (Md.) Vs. Bangladesh and others 48, DLR (HC) 291.

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Citation: 5 MLR 2000 (AD) 51, 1, MLR (1996) (HC) 242, 1, MLR (1996) (HC) 264

Case Year: 1985

Subject: Abandoned Buildings (Supplementary Provisions)

Delivery Date: 2018-04-25

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Section 5- Enlistment of abandoned property in"Ka" list —

The presumption of correctness of the enlistment of abandoned building in "Ka" list subsequently prepared stands rebutted when the Ministry of Works issued a certificate to the effect that the property in question is not abandoned property and was not included in the "Ka" list. Non-consideration of this material aspect by the Court of Settlement rendered the impugned judgment of the Court of Settlement illegal and of no lawful authority which has been rightly struck down by the High Court Division leaving no scope for interference by the Appellate Division.

Bangladesh Vs. Md. Shajahan. 5 MLR 2000 (AD) 51.

The Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972 (P.O. No. 16 of 1972)— Enlistment of abandoned property—

When the Government fails to show any basis whatsoever for the enlistment of the property ir» the list as abandoned property and on the contrary the petitioner produces series of documents showing his title and continuous possession and having never been left the country at any tin ic, the enlistment of the property is arbitrary and without any legal authority.

Alhaj Shamsul Hoque Vs. The Court of Settlement and others 1, MLR (1996) (HC) 242.

Release of abandoned property— Limitations—

Md. Abdur Rouf Vs. Government of Bangladesh and other 1, MLR (1996) (HC) 264.

Acquisition and Requisition of Immovable Property Ordinance, 1982

Citation: 3, MLR(1998) (AD) 135, 5 MLR (2000) (AD) 184, 4, MLR (1999) (AD) 387, 4, MLR (1999) (AD) 399, 4 MLR (1999) (AD) 180, 41 DLR (HC) 326, 40 DLR (HC) 232, 42 DLR (HC) 66

Case Year: 1982

Subject: Acquisition and Requisition of Immovable Property

Delivery Date: 2018-03-31

Acquisition and Requisition of Immovable Property Ordinance, 1982

(Ordinance No. II of 1982)

Section 3 and 4— Acquisition for public purpose— Scope of interference—

Where the land is urgently required for Government purpose and is acquired by duly serving notice under section 3 and hearing objection under section 4 of the Ordinance there is no ground to interfere with the acquisition proceedings.

Zahed Hossain Mia Vs. The Deputy Commissioner, Chittagong and others. 3, MLR(1998) (AD) 135.

Section 3— Acquisition of immovable property for public purpose— Service of notice- Constitutionality of—

In a proceeding for acquisition of immovable property for public purpose notice under section 3 of the Ordinance of 1982 need not be served personally upon individual owner or occupier. Section 3 pre-supposes service of notice in the locality or near the property. Moreover it is held that section 3 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 does not offend article 31 and 42 and as such is not ultra vires the Constitution.

Abdus Salam Vs. Government of Bangladesh represented by the Secretary, Ministry of Land Administration and Land Reforms & others. 5 MLR (2000) (AD) 184.

Section 12-Abatement of acquisition proceedings—

As provided under section 12 of the Acquisition and Requisition of Immovable Property Ordinance 1982, acquisition proceeding abates in the event of nonpayment of compensation money to the owner or non-depositing to the Government the money by the requiring body under section 10 within one year from the date of decision of the Government under section 5 of the Ordinance. Such proceeding does not abate if the petitioner cannot establish the non-payment of compensation money to him within the statutory period.

Alauddin Khandoker (Md) Vs. Government of Bangladesh represented by the Secretary, Ministry of Land and others. 4, MLR (1999) (AD) 387.

Section 28— Arbitration in matters of preliminary assessment of compensation—

When the dispute as to preliminary assessment has been resolved by the Arbitrator and affirmed by the Appellate Tribunal well within their jurisdiction such decision cannot be interfered with merely on the ground that the assessment was made on the basis of photocopy of the kabala deeds in the absence of anything showing contrary thereto.

Dhaka City Corporation represented by its Mayor Vs. Abdus Salam, District Judge & Arbitration Appellate Tribunal, Dhaka. 4, MLR (1999) (AD) 399.

Section 28—Compensation reassessment at the prevailing market rate—

There is nothing wrong in reassessment of compensation at the prevailing market rate by the Arbitration Court.

Bangladesh represented by the Deputy Commissioner, Khulna Vs. Mrs. Sayera Khatun and others - 4 MLR (1999) (AD) 180.

Section 3 and 15- Provision of section 15 is mandatory— Agreement with the Non-Government requiring Body is a sine-quanon which vests jurisdiction to the Deputy Commisioner to exercise the power of acquisition—

The provision of section 15 is riot directory but mandatory. Before the Deputy Commisioner acquires jurisdiction to publish notice under section 3 an agreement with the Non-Government requiring Body is a sine-quanon for exercise of such power. It is a condition precedent. It can not be whittled down by any device. Acquisition proceedings started without any such agreement can not be validated by a subsequent agreement because the principle of subsequent validation can not be entertained where the property rights of the citizen are involved.

Sankar Gopal Chatterjee Vs. Additional Commisioner, Dhaka . 41 DLR (HC) 326.

Sections 10(2) and 30 — Exercise of powers by Arbitrators are not judicial powers—

The Arbitrator does not exercise a judicial function in course of inquiry or investigation as to the amount of compensation and as such is not a court although he is expected to act within judicial norms.

Begum Lutfunnessa Vs. N. Ahmed- 40 DLR (HC) 232.

Sections 27, 31, 32, 34(3)— Appeal against award of the Arbitrator—

There is no distinction between the terms "Persona Designata" and "Court" when the functions to be performed by the designated person, is judicial in nature then it is court. Appeal against the decision of the Arbitrator lies to the District Judge as member of Appellate Tribunal appointed under section 27 of the Ordinance. Revision under section 115 of the Code of Civil Procedure, 1908 lies to the High Court Division against the decision passed in appeal by the Appellate Tribunal.

Khaled Akbor Vs. Government of Bangladesh. 42 DLR (HC) 66.

Administrative Tribunals Act, 1980

Citation: 7BLT (AD)-30, 4BLT (AD)-255, 5 BLT (AD)-211, 7BLT (AD)-90,4BLT (AD)-230, 6BLT (AD)-259.

Subject: Administrative Tribunals

Delivery Date: 1970-01-01

The case was not bad for defect of party.

The Administrative Appellate Tribunal found that in the written statement the petitioners did not raise any objection about defect of party. It is for the first time before the Administrative Appellate Tribunal that the objection as to defect of party was raised. The objection having been raised at the appellate stage an application was filed by the respondent for proper description of the party by impleading ‘Bangladesh Krishi Bank’ as a party. In that view of the matter, the submission of the learned Advocate Is too technical and for which the respondent should not suffer. Apart from this technical objection, we also find that both the tribunals below found that due opportunity was not accorded to the respondent to plead his case before the Board of Inquiry for which the respondent was materially prejudiced in his defence. In that view of the matter, there is nothing for our interference with the impugned judgment of the Administrative Appellate Tribunal. [Para-51]

Bangladesh Krishi Bank & Ors Vs. Mohammed Hossain Bhuiyan 7BLT (AD)-30

Section-4 Read with Rule-17 of The Government Servant’s (Discipline and Appeal) Rules, 1985

Point of Limitation — the Limitation for the Purpose of Section 4 of the Act would run from the date of the rejection of the first appeal. The view taken by the Appellate Tribunal was, therefore, right. (Para-4)

Md. Abdur Rahiin Vs. MLIIIStrLJ of Food 4BLT (AD)-255

Section-4(2)

Jurisdiction of the Administrative Tribunal — respondent was appointed as an officer of the appellant Bank on 4-1-78 and he was given invalid retirement on his own seeking on 15.10.89. Thereafter on 15.4.90 he submitted an application for reemployment in the Bank. The authority, rejected his application for re-employment by order dated 16.3.92—Held : It is clear that the jurisdiction of the Tribunal is attracted when the person is in the service of the Republic of any statutory public authority but in the present case the former service of the respondent had ceased to exist and the question of re-employment is an issue wherein the respondent has no legal claim in the service of the appellant Bank. It is purely a matter of discretion for the appellant to re-employ the respondent and if, for any reason the appellant does not feel inclined to re-employ the respondent, that matter cannot be brought within the jurisdiction of the Administrative Tribunal not being covered by the Provision of Section 4(2) of the Administrative Tribunal Act, 1980. [Para-8]

Janata Bank Vs. Md. Shah Alam Sarker 5 BLT (AD)-211

Section-4(2) Read with Article- 146 of Constitution of Bangladesh, 1972

Condonation—Principle

In the present case the Government of Bangladesh was there in the application of the appellant but it was not properly described, that is to say, the word ‘secretary should have followed the words “Government of the People’s Republic of Bangladesh” and not preceded it—it will be, however, a matter for consideration in each case whether the irregularity of describing a necessary party properly the same should prove fatal or whether it can be condoned. In the present case, condonation principle should apply. [Paras-20 & 21]

Md. Ali Emdad Vs. Labour Director & Ors. 7BLT (AD)-90

Section-6(3)

To reinstate the respondent in service — Sub-Section 3 of Section 6 of the Act empowers the Administrative Appellate Tribunal to consider set aside, vary or modify’ any order or decision of an Administrative Tribunal on an appeal. (Para-3)

S.P. Naogaon & Ors. Vs. Sree Delip Kr. Barman 4BLT (AD)-230.

Section-7 (3B)

Absence of the Chairman or any other member is conceived in a situation where in the midst of a hearing by all the three members one departs temporarily for any reason so that he remains a party to the deliberations and, therefore, competent to sign the judgment. [Para-221]

Miss Shaheda Khatun Vs. Administrative Appellate Tribunal & Ors 6BLT (AD)-259.

Administrative Tribunals Act, 1980

Citation: 2 MLR (AD) (1997) 52

Case Year: 1980

Subject: Administrative Tribunals

Delivery Date: 2018-04-25

Administrative Tribunals Act, 1980

Section 4(2)— Limitation for application— Resignation voluntarily submitted and accepted— There is nothing wrong in it-

Application before the Administrative Tribunal must be filed within 6 months of the order passed or decision taken by the departmental higher authority thereon. When the petitioner voluntarily tendered resignation which was accepted and the petitioner was relieved [hereupon, there is nothing wrong in it calling for any interference.

Wahiduzzaman (Md.) Vs. Inspector General of Police and others. 2 MLR (AD) (1997) 52.

Arbitration Act, 1940

Citation: 5 MLR (2000) (AD) 245, 5 MLR (2000) (AD) 68, 4, MLR (1999) (AD) 427, 5 MLR (HC) 24, 5, MLR (HC) 85, 3, MLR (1998) (AD) 275, 2, MLR (1997) (AD) 169, 3, MLR (1998) (AD) 131, 4, MLR (1999) (AD) 133, 5 MLR(2000)(AD) 66, 6 DLR (1954) (HC) 641, 10 DLR (1

Case Year: 1940

Subject: Arbitration

Delivery Date: 2018-03-31

Arbitration Act, 1940

(Act No.X of 1940)

Section 5- Revocation of arbitral authority— Code of Civil Procedure 1908- Order 39 rule 1 and 2 and section 151- Scope of temporary injunction against arbitration proceedings—

In an Arbitration case under section 5 of the Arbitration Act, 1940 seeking revocation of arbitral authority of the tribunal and during the pendency of the case the petitioner-respondent sought for temporary injunction under Order 39 rule 1 and 2 read with section 151 C.P.C. for staying further proceedings of the I.C.C. Arbitration case which was rejected by the Arbitration court but in an appeal taken by the petitioner-respondent the High Court Division granted adinterim injunction staying further proceeding of the I.C.C. Arbitration case for 8 weeks which was ultimately modified in the form of restraining the petitioner-respondent from proceeding with the I.C.C. Arbitration case No.7934/C.K. Since the High Court Division directed the Subordinate judge to dispose of the Arbitration case positively by a certain date without, fail, the Appellate Division declined to interfere with the said order in the interest of justice.

Saipem S.P.A. Vs. Bangladesh Oil Gas and Mineral Corporation (Pelro-Bangla)-5 MLR (2000) (AD) 245.

Sections 8 and 10- In order to be binding arid enforceable an award must be signed by all the arbitrators- Non-compliance with the requirement of sections 8 and 10 renders an arbitral award illegal—

Where one of the arbitrators appointed upon an arbitral reference does not work and the party nominating him also does not supply the vacancy, the other party shall apply to the court to fill up the vacancy. Non-compliance with the requirements of sections 8 and 10 of the Arbitration Act, 1940 renders the arbitral award made by the lone surviving arbitrator illegal.

Trading Corporation of Bangladesh Vs. M/S Mannesman Handel A.G. and others. 5 MLR (2000) (AD) 68.

Seetion-14 —Filing of award for Rule of the Court- Limitation Prescribed for-Objection against award— When can be raised —

Limitation Act 1908- Article 158— Mandatory limitation- Settled position of law—

Award of arbitration shall be filed in the court for making rule of the Court. Objection against award if any, shall have to be filed within 30 days of the filing of the award in court as prescribed by article 158 of the Limitation Act, which is mandatory and is well settled.

University of Dhaka represented by Vice Chancellor & others Vs. Associated Engineers & Drillers represented by its Managing Director Md. Akbar Hossain- 4, MLR (1999) (AD) 427.

Section 14- Award when made rule of the court- Legal effect of Award-decree in partition suit—

When an award is made decree of the court in partition suit, if is simply a preliminary decree. Unless made final, delivery of possession of the land can not be given in pursuance of the preliminary decree.

Mizanur Rahman Khan and another VS. Jinnatnl Ferdous and another- 5 MLR (HC) 24.

Section 14(2)— When arbitral award is not void-ab-initio or illegal apparent on its face, court is bound to make the same rule of the Court— Section 9(b) and 33- Court can not sit over arbitral award as court of appeal—

When the other side does not cooperate to appoint its arbitrator despite service of notice as provided under section 9(b) of the Arbitration Act, 1940, the sole arbitrator can proceed and alone make the award. Unless an arbitral award is void ab-inilio or is illegal apparent on the face of it, court is bound to make the same rule of the court and draw a decree accordingly. The court making the award rule of the court is not a court of appeal and as such it can not sit over the award as an appellate authority as provided under section 33 of the Act.

Mol Enterprise Incorporated Vs. Government of Bangladesh. 5, MLR (HC) 85.

Section 20— Scope of challenge when parties submitted to the jurisdiction—

After the appellant, had submitted to the jurisdiction of the Court in an arbitration proceeding arising out of contractual disputes and the Arbitrators appointed by the Court from the respective panel of the parties submitted, the award which was made rule of the Court, subsequently the award so made cannot the challenged on the ground of non-maintainability of the contract becoming not valid and enforceable. Award may be set aside only on the ground of misconduct on the part of the arbitrators.

Bangladesh Telegraph and Telephone Board Vs. Lithi Enterprises Lld- 3, MLR (1998) (AD) 275.

Section 28—Explanation 1— Submission to foreign jurisdiction for arbitration—

Explanation 1 of section 28 of the Contract Act provides for submission of parties to the contract to foreign jurisdiction in matter of resolution of dispute arising out of contractual obligation by arbitration. Since no state can live in isolation and when reciprocal arrangements in commercial deals are recognised, such provision relating to submission to foreign jurisdiction is not opposed to Stale Sovereignty and inconsistent with independant State Policy.

Bangladesh Air Service (Put.) Lid. Vs. British Air Ways P. L. C- 2, MLR (1997) (AD) 169.

Section 39— Whether interest on decretal amount can be granted by Appellate Court—

Where no interest is awarded by the Arbitrators and no claim for the interest was made in the court making the award rule of the court, no interest on the decretal amount can be granted by the court in the stage of the appeal.

Bangladesh Oil, Gas and Mineral Corporation (Pelro-Bangla) Vs. M/s Nuruzzaman Khan and Brothers. 3, MLR (1998) (AD) 131.

Section 31(1)— Jurisdiction of Court for filing award—

The award shall be filed in a court for making the award rule of the court which has the jurisdiction to entertain a suit in respect of the subject matter of the reference as defined under section 2(c) of the Arbitration Act.

Abdul Karim Dobash and others Vs. Abdnr Razzak Dobash and others- 4, MLR (1999) (AD) 133.

Sections 32 and 33- No suit is maintainable without recourse to section 33—

A clear bar is put under section 32 of the Arbitration Act, 1940 against maintain- ability of a suit challenging arbitral agreement or for setting aside an award without having recourse by way of application under section 33 of the Act.

Badsha Mia and others Vs. Abdul Kader and others. 5 MLR(2000)(AD) 66.

Section 3— Period within which the arbitrators are to make the award—

Unless a different intention is expressed in the arbitration agreement, the arbitrators shall make their award within four months of entering on the reference as provided in the First. Schedule of the Limitation Act, 1908 or within such time as may be extended by the court. Award made beyond the period of four months or the extended time is not sustainable.

6 DLR (1954) (HC) 641.

Section 5— Objection against new appointment of arbitrator when can be raised—

Upon cancellation of the appointment of the former arbitrator new arbitrator was appointed in his place without leave of the court. No objection was raised before the court or before the newly appointed arbitrator. Objection raised in appeal on this point cannot be entertained-

10 DLR (1958) (S.C.) 169.

Section 8— Appointment of Umpire

Appointment of umpire beyond time by I the Court on failure of the parties to I appoint umpire when the arbitrators could I not arrive at an agreed decision is not illegal.

Abdur Rahim Vs. B. C. Aga & Co. 29 DLR I (SC) 215.

Section 8(2)— Jurisdiction of Court to appoint umpire

Jurisdiction of the court to make an appointment under sub-section (2) arises only when (he parties have failed to come to an agreement in respect of appointment of a new arbitrator or umpire within the time of 15 days allowed for so doing.

Government of Bangladesh Vs. M/S. Samir & Co- (1976) 28 DLR (SC) 21.

Section 30- Objection as to misconduct of the arbitrator- when to be raised—

Misconduct on the part of arbitrators may be a ground for setting aside their awarcl. But such misconduct when not agitated in the trial court, cannot be raised afresh before the superior courts.

Bangladesh T&.T Board Vs. LiLhi Enterprise Ltd.- 50 DLR (AD) 63.

Section 9 (b) and 10 (2)— Two sections operate in two perspectives—

Provisions of section 9(b) are not applicable where an agreement to refer a dispute to arbitration was to the effect that the two parties shall appoint an arbitrator and with the consent of the two arbitrators or with the consent of both the parties a sarpanch shall be appointed for bringing about a mutual settlement. Such an agreement falls within the purview of section 10(2)-

6 DLR (1954) (SC) 131.

Section 14(2)—Validity of notice served upon lawyer of the party—

Notice as contemplated under subsection (2) of section 14 of the Arbitration Act, 1940 is perfectly valid and the requirement of the law is satisfied if such notice is given to the lawyer of the party.

PLR (1956) (Lahore) 555.

Section 16- Setting aside of an award by the court does not by itself supersede the arbitral reference—

Section 16 leaves it to the discretion of the court while setting aside an award to decide as to if the arbitral reference will be superseded thereby or not. Unless the court expressly decides so to do, the setting aside of an award does not by itself construct any such supersesion and as such the arbitral reference shall continue notwithstanding the setting aside of the award.

M/s. A. Z. Co. Karachi Vs. M/s Maula Boksha- (1965) 17 DLR (SC) 404.

Section 20— Duty of the Court to refer the dispute to the arbitrators appointed by the parties—

Section 20 of the Arbitration Act, 1940 casts upon the court duty to refer the dispute to the arbitrators appointed by the parties. But when the parties can not agree upon appointment of an arbitrator, the court should appoint an arbitrator.

Government of Bangladesh Vs. M/s Mashriqui Textiles (1983) 35 DLR (AD) 123.

Section 28— High Court has power under section 115 of the Code of Civil Procedure to extend time under section 28 of the Arbitration Act—

Where the Appellate court fails to exercise power under section 28 of the Arbitration Act 1940, the High Court in exercise of power under section 115 of the Code of Civil Procedure can well extend time as contemplated under section 28 of the Arbitration Act.

M/S. Pakistan Trading Company Vs. MM. Ispahani Ltd- (1968) 20 DLR (SC) 22.

Section 33— Maintainability of an application for declaration that an award is invalid and illegal after an application for setting aside an award is barred—

An application under section 33 of the Arbitration Act, 1940 for declaration that an award is illegal and invalid is maintainable after an application for setting aside the same is barred by limitation.

ILR(1949) 1 (Cal) 245.

Section 34— Stay of proceedings—

It is quite clear that the legal proceedings which are sought to be stayed must relate to a dispute which the parties have agreed to refer to arbitration. But in a suit where the claim falls out side the arbitration claim under the agreement, the court must not grant any slay and this principle is well settled.

Chiltagong Port Authority Vs. M/S, Crete Construction Company Lld-(1979) 31 DLR (AD) 138.

Section 37(3)— Commencement of arbitration—

Arbitration commences when one party gives notice to another for appointment of arbitrator.

Government of East Pakistan Vs. Sarwar Ali Biswas- (1968) 20 DLR (HC) 727.

Section 39— Interference with an award— Not permissible— Except through court—

Departmental higher authority has no jurisdiction and can not set aside or other wise question the validity of an award duly made by his subordinate officer appointed an arbitrator. The award can only be setasicle by a court of law under the provisions of the Arbitration Act.

S.K Shamsul Huda Vs. E.P. WAPDA-(1972) 24 DLR (HC) 122.

Section 42— Time within which award should be made— after remittance of the case to the arbitrator—

Award should be made within four months from the date of entering on reference. However, the court can extend time.

1953 PLR (Lah) 989.

Section 28— Period of making an award- Extension of time—

When the arbitration proceedings continued beyond four months without any objection raised by the parties, the conclusion is that the party concerned waived its right. Moreover enlargement of time beyond 4 months by the consent of both the parties is also permissible.

Government of Bangladesh Vs. Jalaluddin Ahmed- 37 DLR (AD) 27.

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

Citation: 1, MLR (1996) (AD) 98, 1, MLR (1996) (HC) 242, 32 DLR (AD) 216, (1976) 28 DLR (SC) 120, 36 DLR (AD) 255, 5 BLD (AD) 225, 2 BID (AD) 117, 1 BLD (HC) 273

Case Year: 1972

Subject: Abandoned Property

Delivery Date: 2018-03-31

Bangladesh Abandoned Property

(Control, Management and Disposal) Order, 1972

(P.O. 16 of 1972)

Section 5(2)— Onus of proof lies on claimant- Government has no obligation to disclose the basis—

The onus of proof that the building is not an abandoned property, squarely lies on the claimant of the building. The Government has no obligation either to deny or to disclose the basis of treating the same as abandoned property. The High Court Division not being a Court of appeal while exercising its writ jurisdiction cannot interfere with the findings of the Court of Settlement unless such findings are without jurisdiction, malafide or made in violation of any principle of natural justice.

Government of Bangladesh Vs. Md. Jalil & others- 1, MLR (1996) (AD) 98.

Section 5— Enlistment of abandoned property—

When the Government fails to show any basis whatsoever for the enlistment of the property in the list as abandoned property and on the contraiy the petitioner produces series of documents showing his title and continuous possession and having never been left the country at any time, the enlistment of the property is arbitrary and without any legal authority.

Alhaj Shamsul Hoque Vs. The Court of Settlement and others. 1, MLR (1996) (HC) 242.

Article 2— Vesting of abandoned property in the Government—

On the passing of the P.O. No. 16 of 1972 i.e. from 28.02.1972 all abandoned properties shall vest in the Government and shall be administered, controlled, managed and disposed of by transfer or otherwise, in accordance with the provisions of P.O. No. 16 of 1972.

Nasiruddin Vs. Government oj Bangladesh- 32 DLR (AD) 216.

Section 2(1)— Meaning of abandoned Property—

Language of the article 2(1) of the P.O. No. 16 of 1972 is not free from ambiguity and consequently the interpretation of the term "abandoned property" becoming a mater of some complexity. Therefore the principle of interpretation to harmonise the meaning of the term with the legislative intent should be followed. The three sub-clauses of article 2(1) should be read disjunctively.

Government of Bangladesh Vs. A.T.J, I Industries- (1976) 28 DLR (SC) 120.

Forcible eviction not sustainable—

Forcible eviction of the possessors from the premises under P.O. No. 16 of 1972 is illegal when the premises have become the subject-matter of purchase under a valid agreement. Such forcible eviction is not sustainable in the eye of law.

Government of Bangladesh Vs. Md. Abdus Subhan. 36 DLR (AD) 255.

Incorporation of company in Bangladesh makes the property of the Company not abandoned—

Gannysons after incorporation in Bangladesh has become a juristic person whose directors have always been in Bangladesh and as such the said property cannot be abandoned property. For the purpose of doing complete justice as required by article 104 of the Constitution it is declared that the Gannysons is not an abandoned property.

M/S Gannysons Ltd. Vs. Sonali Bank- 5 BLD (AD) 225.

Lease by Government—When granted lease by the Government relationship between lessor and lessee is not altered, no matter it is government's own property or abandoned property—

Government has the power to lease out the abandoned property as well as its own property. Merely because the property of the Government not being abandoned property was leased out as such does not on discovery, alter the relationship between the lessor and lessee.

Md. Kashem Vs. Government of Bangladesh and others. 2 BID (AD) 117.

Rule 10— Relationship between monthly tenant and Government— Governed by the Premises Rent Control Ordinance, 1963—

The relationship between a tenant and Government including termination of tenancy in respect of abandoned premises let put by the Government to private person on monthly rent is governed the provisions of Premises Rent Control Ordinance 1963— (XX of 1963).

Bank of Credit and Commerce International (Overseas) Ltd. Vs. Bangladesh. 1 BLD (HC) 273.

Bangladesh Agricultural Development Corporation Decipilinary case Proceedure 1977

Citation: 2, MLR(1997) (AD) 103

Case Year: 1977

Subject: Bangladesh Agricultural Development Corporation

Delivery Date: 2018-03-31

Bangladesh Agricultural

Development Corporation

Decipilinary case Proceedure 1977

Acquittal in appeal of criminal charge— Claim for re-instatement—

An employee dismissed on ground of I conviction on a criminal charge cannot claim his reinstatement in service merely by reason of his acquittal in appeal on setting aside of his conviction. His remedy lies in appropriate proceedings for setting aside the order of dismissal and not in challegirig the order refusing his reinstatement.

Bangladesh Agricultral Development Corporation and others Vs. Ahdur Razzaque. 2, MLR(1997) (AD) 103.

Bangladesh Agricultural Development Corporation Ordinance, 1961

Citation: 4, MLR (1999) (AD) 167

Case Year: 1961

Subject: Bangladesh Agricultural Development Corporation

Delivery Date: 2018-04-01

Bangladesh Agricultural

Development Corporation

Ordinance, 1961

Section 74-Term "action" means "suit-Limitation provided under section 74 of the E5ADC Ordinance, 1961 is a special law which prevails over the general law. Suit instituted beyond the period of limitation is barred. When the plaintiff had withdrawn the retirement benefits accepting the order of retirement, his subsequent claim is waived by doctrine of acquiescence.

Bangladesh Agricultural Development Corporation Vs. Abdul Barek Dewan being dead his heirs Bali Begum and others. 4, MLR (1999) (AD) 167.

Bangladesh Allocation Rules, 1982

Bangladesh Allocation Rules, 1982

Rule 15 –

The petitioner's case against termination of his service having remained pending for disposal, the order directing him to vacate his residential accommodation is without lawful authority.

Abdur Rahim (Md) vs Bangladesh Sarak Paribahan Corporation (Spl Original) 51 DLR 339.

Bangladesh Bar Council Order, 1972

Citation: 3 BLD (HCD) 58, 4 BLD (AD) 170

Case Year: 1972

Subject: Bangladesh Bar Council

Delivery Date: 2018-03-31

Bangladesh Bar Council Order, 1972

(P.O. 46 of 1972)

Section 12— Rule 65A— Condition of two year's practice in subordinate courts by the advocates having LL.M degree for being eligible to practise before High Court Division— Grant of exemption is the discretion of the Bar Council—

The question of two years practice in the subordinate courts before an advocate having LLM Degree becoming eligible to practise in the High Court Division relates to training and experience. To grant exemption from this condition is the discretion of the Bar Council which can not be claimed as a matter of right. The Bar Council has to satisfy itself whether a person claiming exemption has the requisite legal training and experience to practise before the High Court Division. If one satisfies the prescribed criteria under Rule 65-A, he becomes merely eligible for claiming exemption but the Bar Council may not be satisfied about the desirability of granting exemption in a particular case or cases in the absence of adequate legal training or experience which of necessity should be the prime concern with the Bar Council. In matters like this it is necessary and desirable that the Bar Council should be left alone and its exercise of discretion should not be interfered with lightly unless for a compelling reason.

Kazi Habibul Awal Vs. Bangladesh Bar Council- 3 BLD (HCD) 58.

Article 44 (g)— Professional misconduct— What constitutes— An Advocate can not act against the interest of his client and accept the brief of the adverse party

Though the term "professional misconduct" has not been defined in the statute or the rules, the expression has got a well-defined meaning. Article 44(g) of the Bangladesh Bar Council Order, 1972 (P.O. 46 of 1972) under the heading "conduct with regard to clients" provides that an advocate shall not accept employment adverse to the client or former client etc. When the appellant was entrusted with the conduct of the suit for which he accepted fees and as such even if he did not file power in his name he cannot absolve himself from the responsibility of being the plaintiffs advocate. Acceptance of brief in a suit against the interest of his client clearly amounts to professional misconduct.

A.K.M. Rezaul Karim Vs. Md. Iskander Ali & another- 4 BLD (AD) 170.

Bangladesh Biman Corporation Employees (Service) Regulations, 1979

Citation: 1, MLR (1996) (HC) 73, 5 MLR(2000)(AD) 258, 2, MLR(1997) (AD) 71, 3, MLR(1998) (HC) 185, 1, MLR (1996) (HC) 295, 7 BLD (AD) 192

Case Year: 1979

Subject: Bangladesh Biman Corporation Employees

Delivery Date: 2018-04-01

Bangladesh Biman Corporation Employees

(Service) Regulations, 1979

Regulation 11— Age of retirent—

The age limit of the petitioner to remain in seivice till attaining 57 years cannot be reduced or curtailed specially when such right of an employee is accrued under the law when he was appointed. Regulation 11 as amended by S.R.O. No. 56 AL/84 dated 5-2-1984 reducing age limit of retirement of Cabin Crew from 57 to 35 years without corresponding amendment of rule 3 and 4 of Bangladesh Biman Seivice (Pension and Gratuity), Rules, 1988 being discriminatory and violative of article 27 and 28 of the Constitution is void and of no legal effect.

Dalia Parueen Vs. Bangladesh Biman Corporation and another. 1, MLR (1996) (HC) 73.

Regulation 11A(2)— Public Servants (Retirement) Act, 1974- Section 9(2)- Power of the Government to retire Biman Employee-Defence Service officers (Appointment and Fixation of Seniority in Civil Post) Rules 1983—

An employee of Bangladesh Biman Corporation is a Public Servant within the meaning of section 2(d) of the Public Servants (Retirement) Act, 1974. A Defence officer's past service is counted .towards his seniority on appointment in civil post. Therefore the Public Servants (Retirement) Act, 1974 is applicable to such an employee after completion of 25 years seivice including his past defence service.

Bangladesh Biman Corporation Vs. Lt Col. (Reid.) Md. JoynuL Abedin & others- 5 MLR(2000)(AD) 258.

Regulation 18(C)-— Determination of seniority of the recruits under one advertisement and under same recruitment examinations but undergoing training in batches one after another due to logistic constraints—

Where the employees are recruited in pursuance of one advertisement under the same written and viva voce. examinations and where the results of the training of such recruits are counted towards determining their inter-se-seniority, the infer se-seniority of such employees should be determined on the basis of the merit taken together of the written examination, viva voce test and the result of the training regardless of whether such recruits are given training at a time or in batches at different time due to logistic problem.

Aminul Hoque and others Vs. Rejiqul Hassan and others. 2, MLR(1997) (AD) 71.

Regulation 24— Foregoing promotion does not exempt from transfer—

An employee of Bangladesh Biman is under the legal obligation to serve in any station in Bangladesh and abroad as required by regulation 24 of the Regulations, 1979. That the writ petitioner has forgone his right of promotion by itself does not exempt him from being transferred elsewhere for administrative reasons. The order of transfer of the petitioner being not one offending any of the fundamental rights, does not call for any interference under the writ jurisdiction.

KM. Nurul Islam us. Secretary, Ministry Civil Aviation and Tourism and others 3, MLR(1998) (HC) 185.

Rule 4— Voluntary retirement— Non-impleading of Biman Corporation as party not fatal—

An employee of Bangladesh Biman Corporation has option to retire on completion of 25 years service by giving 30 days prior notice of the intention and the authority is bound to allow such voluntary retirement. An application for optional retirement cannot be refused on ground of vague and wild allegation and when no enquiry has been commenced. When the Managing Director is made party mere non-impleading of the Bangladesh Biman Corporation being of technical nature will not frustrate the purpose of the writ petition.

M. Rashiduzzaman Vs. Gouernment of Bangladesh and others. 1, MLR (1996) (HC) 295.

Section 14 and 31 (d)- Bangladesh Biman Corporation Employees (Service) Regulations, 1979- Regulation 18 and 19—

Interpretation of statute— In case of conflict parent law shall prevail over subordinate legislation.

Classification of "existing employees" and "new entrants" Fixation of seniority— Majority view— Per Shahabuddin Ahmed-J. B.H. Chowdhury J and M.H. Rahaman-J. concurring with him.

The Ordinance XIX of 1977 was promulgated in 1977 with a provision, for making appointments of officers and employees of the Corporation. In exercise of power conferred by article 30, the Biman Corporation has made the Regulations in December 1979 and it came into force from the date. The respondents having been appointed earlier than the Regulations, that is, in June 1978 cannot be brought into the class of "new entrants" as referred to in Rule 18(a) for the purpose of determination of seniority unless the Regulations were given effect from the date of such appointment or from the date of the Ordinance. "Existing employees" therefore mean those employees who were in the Corporation's service when the Regulations were made and published. The employees who are appointed after the Regulations came into force, are the 'new entrants'.

Minority view— F.K. Fazle Munim— C.J. gave dissenting judgment. A.T.M. Afzal- J concurring with him.

The Regulations cannot in the absence of such classification in the Ordinance divide the employees into two categories, such as, 'new entrants' and "existing employees'. It is only the parent Act i.e. the Ordinance which must provide the service structure of the Corporation's' employees. Provisions of the Regulation 18(a) and 19 must be constructed with reference to section 14 and 31(d) of the Ordinance which, by their terms, created the demarcation between the two groups of employees, namely, those employees of the Biman who stood transferred to the Corporation on the date of the coming into operation of the Ordinance and those employees who will be appointed after the Corporation came into force.

Parent Law shall prevail—

There is no dispute that provisions of a subordinate legislation must be in conformity with those of its parent legislation and in the case of any conflict the provisions of the parent law shall prevail. In this case the Ordinance is the parent law and the Regulations are its subordinate legislations and if there is any vacuum in the subordinate legislation in respect of any matter, but about which specific provision has been made in the parent law, then the provision of the parent law shall be read into the subordinate legislation.

Bangladesh Biman Corporation Vs. Syed Aftab AH and others- 7 BLD (AD) 192.

Bangladesh Citizenship (Temporary Provisions) Order, 1972

Citation: 3 BLT (AD)-3.

Subject: Bangladesh Citizenship

Delivery Date: 1970-01-01

Article-3

[Prof. Golam Azam, the Jamaat leader, hereinafter called the respondent, left for Pakistan on 22 November, 1971 but he could not turn back because of the War of Liberation, 1971. Whether Government notification dated April 18, 1973 declaring Prof. Golam Azam disqualified to be the citizen of Bangladesh under Article 3 of the Bangladesh Citizenship (Temporary Provision) Order, 1972 was of any legal effect and whether the show cause notice dated March 23, 1992 served on him as reference has any lawful authority. The answer is ‘No’]

To meet the requirements of the new situation that emerged out of independence of Bangladesh P.O. 149 of 1972 was brought into existence on 15 December, 1972. one day before the commencement of the Constitution so that It might get the constitutional protection of an existing law. It has undergone several amendments. At present, law of citizenship is governed by two legislations the Citizenship Act, 1951 continued as an existing law and the Bangladesh Citizenship (Temporary Provisions) Order, 1972 (P.O. 149 of 1972) which came into force on 15 December, 1972, but It was given effect from 26 March, 1971. [Para-9]

Bangladesh Vs. Prof. Golam Azam & Ors. 3 BLT (AD)-3.

Bangladesh Civil Service Recruitment Rules. 1981

Citation: 3, MLR (1998) (HC) 252

Case Year: 1981

Subject: Bangladesh Civil Service Recruitment

Delivery Date: 2018-04-25

Bangladesh Civil Service

Recruitment Rules. 1981

Rule 4(3)(b)— Constitution of Bangladesh— Article 27, 29— Attachment with student front is not disqualification for appointment in police cadre—

Since no separate Rules have been framed for recru itment in the Police Cadre the Bangladesh Civil Service Recruitment Rules 1981 equally apply to recruitments in all cadres. When a candidate has qualified himself in competitive examination and has been selected by the Public Service Commission for appointment to the police cadre he cannot be refused appointment on the basis of police report about his attachment with a student ^rront of a political party which is not banned.

Gazi Jashimuddin Vs. Bangladesh represented by the Secretary, Ministry of Home Affairs and others. 3, MLR (1998) (HC) 252.

Bangladesh Civil Service Recruitment Rules, 1981

Citation: 3, MLR (1998) (HC) 252, 5 MLR (2000)(AD) 350, 1, MLR (1996) (AD) 108

Case Year: 1981

Subject: Bangladesh Civil Service Recruitment

Delivery Date: 2018-04-01

Bangladesh Civil Service Recruitment Rules, 1981

Rule 4(3) (b)—

Constitution of Bangladesh—Article 27, 29— Attachment with student front is not disqualification for appointment in police cadre—

Since no separate Rules have been framed for recruitment in the Police Cadre the Bangladesh Civil Service Recruitment Rules, 1981 equally apply to recruitments in all cadres. When a candidate has qualified himself in competitive examination and has been selected by the Public Service Commission for appointment to the police cadre he cannot be refused appointment on the basis of police report about his attachment with a student front of a political party which is not banned.

Gazi Jashimuddin Vs. Bangladesh represented by the Secretary, Ministry of Home Affairs and others. 3, MLR (1998) (HC) 252.

Rule 3 (g)- Applicability of the Rule to the recruits appointed on Special viva voce test-

Government has the power to give prospective or retrospective effect to a rule and fix notional date of joining and has also power to reorganise services under provisions of section 4 of the Services (Reorganisations and Conditions) Act, 1975. Seniority of members of the B.C.S.(Admin.) Cadre appointed as a special batch on viva voce test deserves their position below the regularly appointed batch of the same year and in terms of the offer of appointment.

Rule 3 (g) of the B.C.S. Seniority Rules, 1983 being consistent with the general principles of seniority, 1970 is neither illegal nor violative of fundamental rights.

A.H.M. Mustain Billah and others Vs. Government of Bangladesh and others. 5 MLR (2000)(AD) 350.

Bangladesh Civil Service (Foreign Affairs) Seniority Rules, 1983— Question of seniority—

The question of due promotion and seniority are important matters which should be secured. The Appellate Division can do complete justice under Article 104 of the Constituion only when any matter or cause is pending in appeal before it.

Raziid Hasan Vs. Badiuzzaman Khan and others- 1, MLR (1996) (AD) 108.

Bangladesh Civil Service Seniority Rules, 1983

Citation: 5 MLR 2000 (AD) 350

Case Year: 1983

Subject: Bangladesh Civil Service Seniority

Delivery Date: 2018-04-25

Bangladesh Civil Service Seniority

Rules, 1983

Rule 3(g)- Applicability of the Rule to the recruits appointed on Special viva voce test-

Government has the power to give prospective or retrospective effect to a rule and fix uotional date of joining and has also power to reorganise services under provisions of section 4 of the Services (Reorganisations and Conditions) Act. 1975 Seniority of members of the B.C.S.(Admin.) Cadre appointed as a special batch on viva voce test deserves their position below the regularly appointed batch of the same year and in terms of the offer of appointment. Rule 3(g) of the B.C.S. Seniority Rules, 1983 being consistent with the General Principles of Seniority, 1970 is neither illegal nor violative of fundamental rights.

A.H.M. Mustain Billlah and others Vs. Government of Bangladesh and others 5 MLR 2000 (AD) 350.

Bangladesh Engineering and Technological University Ordinance, 1961

Bangladesh Engineering and Technological University Ordinance, 1961

Section 12(3) –

Vice-Chancellor's order suspending appointment of BUET professor on probation, legality of- In an emergency the ViceChancellor has the power even to terminate the service of a teacher appointed on probation before the decision of the Syndicate; The court cannot enquire into the existence of emergency or propriety of the action taken by the Vice Chancellor.

Dr. Syed Mahbubur Rahman vs BUET 45 DLR 333.

Bangladesh Engineering and Technological University Employees (Efficiency and Discipline) Statutes

Statute 6, clauses (2) and (3) –

The University authority did not pass the impugned order of suspension prematurely or without lawful authority.

MM Hossain vs BUET 40 DLR 31.

Statutes 6(2), 7 and 15(2) –

From the language of Clause (2) of Statute 15, we do not find anything to suggest that the authority is precluded from passing an order of suspension mJess and until a formal charge-sheet under Statute 7 is served upon a delinquent employee. Clause (2) of Statute 15.

MM Hossain vs BUET 40 DLR 31.

Statute 15, clause (2)-

A delinquent employee cannot be suspended at all unless the authority decides that he is accused of an offence the maximum penalty for which is dismissal or removal from service.

MM Hossain vs BUET 40 DLR 31.

Bangladesh Industrial Enterprises (Nationalisation) Order, 1972

Citation: 5 BLD IAD) 187, 7 BLD (AD) 182, 8 BLD (AD) 66, 8 BLD (AD) 212

Case Year: 1972

Subject: Bangladesh Industrial Enterprises

Delivery Date: 2018-04-01

Bangladesh Industrial Enterprises

(Nationalisation) Order, 1972

Articles 5— Power of control and termination of service of a Mill employee by the Corporation—

In view of the Notification dated 20.09.1975 empowering the Chairman of a Corporation to terminate service of an employee of the enterprise or Mill under the Corporation and also to delegate such power, the Corporation can terminate the service of an employee of a Mill placed under its control. Power of control, supervision and regulation includes also the power of termination.

Bangladesh Jute Mills Corporation Vs. Golam Moula Alisan Chowdhury- 5 BLD IAD) 187.

Article 4, 5, 6, 7 and 17— Relationship of Master and servant became that of employer and employee after nationalisation—

Nolwilhstanding the fact that under P.O. No.27 of 1972, the Company was brought within the ambit of the Corporal ion that does not mean (hat the company became entente nor for that matter it could be argued that: the proceedings should not be initiated by the Company itself. It was a company and the relationship between the parties was thy.i of employer and employee.

Mobarakgonj Sugar Mills Ltd. Vs. A.B.M. Kazi Nazrul Islam- 7 BLD (AD) 182.

Article 4, 10 and 17— Placement of an enterprise under the control of a Corporation does not destroy its corporate character—

By reason of the placement of an industrial unit or an enterprise under the control and supervision of a Corporation the corporate character and separate entity of that enterprise is not destroyed and as such the previous 'relationship between the company, enterprise and its employees continues as before.

Senior Manager, Dost Textile Mills Ltd. Vs. Shudhangsha Bikash Nath. 8 BLD (AD) 66.

Article 17-(1)— Transfer of an employee from one Mill to another under the management of a Corporation—

Bangladesh Jute Mills Corporation by virtue of the powers of control , supervision and regulation vested in it in respect of the Mills brought under its management, can well transfer any employee of one Mill to another.

Nishat Jute Mills Ltd. Vs. Md. Sanaullah- 8 BLD (AD) 212.

Bangladesh Krishi Bank Order, 1973

Citation: 3, MLR (1998) (AD) 184

Case Year: 1973

Subject: Bangladesh Krishi Bank

Delivery Date: 2018-04-01

Bangladesh Krishi Bank Order, 1973

(P.O. No. 27 of 1973)

Article 21(2)(3)-Dues of Krishi Bank are recoverable under Public Demands Recovery Act, 1913—

All sums due to the Bangladesh Krishi Bank shall be recoverable as arrear rents under the Public Demands Recovery Act, 1913 as provided under sub-article(2) of article -21. By sub-article(3) of article 21 the application of sections 7,9 and 10 to the certificate proceeding for realisation of the Bank's loan have been excluded. Similar provisions have also been made in the Public Demands Recovery Act, 1913 by adding section 10A thereto. The officers of the rank of Manager and above of the Bank are authorised to prepare and sign requisition. Such requisition duly signed and issued by the Certificate Officer under section 4 of the Act is a conclusive proof of the amount mentioned therein and as such there is no scope for investigation for ascertaining the amount claimed. These are special provisions for speedy recovery of dues/loan money of Bangladesh Krishi Bank. Since there are provisions of appeal, review and revision under sections 51, 52 and 54 of the Act, which are equally applicable to all loanees, the provisions of section 10A are not violative of the principles of natural justice and also do not offend article 27 and 31 of the Constitution.

Bangladesh Krishi Bank, Monoharpw Branch, Camilla vs. Meghna Enterprises and another- 3, MLR (1998) (AD) 184.

Bangladesh Law Officers Order, 1972

Citation: 31 DLR (HC) 332

Case Year: 1972

Subject: Bangladesh Law Officers

Delivery Date: 2018-04-01

Bangladesh Law Officers Order, 1972

Article 4(1) and b(2)— Law officers whether Government servants—

Law officer is not a Government servant within the meaning of "a person in the Service of the Republic".

Kazi Abdul Wahab Vs. Bangladesh, (1979). 31 DLR (HC) 332.

Bangladesh (Legal Proceedings) Order 1972

Citation: 4 BLD (AD) 8

Case Year: 1972

Subject: Bangladesh (Legal Proceedings)

Delivery Date: 2018-04-01

Bangladesh (Legal Proceedings) Order 1972

(P.O. No. 12 of 1972)

Article 3— Arbitrator not a court—

An arbitrator does not adjudicate and he does not sit as a Tribunal. He is not bound by the technicalities of the Evidence Act. His function is like that of conciliator. He is neither a court nor a Tribunal and his award is not a judgment, decree or order of any court or Tribunal within the meaning of article 3 of the President's Order No. 12 of 1972.

Begum Khadija Akhater Barm arid another Vs. A.K.M. Amanullah and another- 4 BLD (AD) 8.

Bangladesh Madrasha Education Board (Governing Bodies And Managing Committees) Regulations, 1979

Citation: 16BLD (HCD) 607

Subject: Bangladesh Madrasha Education Board (Governing Bodies And Managing Committees)

Delivery Date: 1970-01-01

Bangladesh Madrasha Education Board (Governing Bodies And Managing Committees) Regulations, 1979

Regulation Nos. 4, 5 and 13

Regulation 4 provides for constitution of the Governing Body while Regulation 5 provides for constitution of the Managing Committee. Regulation 13(d) speaks about the powers and functions of the Governing Body and the Managing Committee.

Although the Chairman of the Managing Committee of the Madrasha is the Thana Nirbahi Officer and by the impugned order the said Thana Nirbahi Officer directed the principal of the Madrasha to allow the petitioner to join his post, the order so passed by the Thana Nirbahi Officer cannot be construed as an order of the Governing Body or the Managing Committee. The order passed by the Thana Nirbahi Officer not being an order of the Governing Body or the Managing Committee it clearly falls outside the purview of Regulation 13 and as such it has no legal force.

When an order is passed by an authority having no force of law the High Court Division acting under Article 102 of the constitution shall not direct the authority concerned to enforce such an order by an order of mandamus.

Kazi Abdur Rouf Vs. Government of Bangladesh 16BLD (HCD) 607.

Bangladesh Madrasha Education Board Governing Bodies and Managing Committees Regulations, 1979

Citation: 1, MLR (1996) (HC) 157

Case Year: 1979

Subject: Bangladesh Madrasha Education Board Governing Bodies and Managing Committees

Delivery Date: 2018-04-25

Bangladesh Madrasha Education Board Governing Bodies and Managing Committees Regulations, 1979

Regulation 13—Order of Thana Nirbahi Officer—

The order of the Thana Nirbahi Officer not being the order of the Governing Body or the Managing Committee does not fall within the purview of Regulation 13 and as such is not enforceable under article 102 of the Constitution by order of mandamus.

Kazi Abdur Rouf Vs. Government of Bangladesh 1, MLR (1996) (HC) 157.

Bangladesh Passport Order, 1973

Citation: 5 MLR (2000) (HC) 267

Case Year: 1973

Subject: Bangladesh Passport

Delivery Date: 2018-04-01

Bangladesh Passport Order, 1973

Article 7— Impounding of passport— Constitution of Bangladesh— Article 36— Freedom of movement—

A citizen's right to leave and re-enter Bangladesh is a fundamental right which cannot be curtailed except on reasonable restrictions imposed by law. Writ petition against impounding of passport is not maintainable as there is the provisions of appeal to the Government and the petitioner did not avail of this provisions. (Over ruled by A.D.)

Hussain Mohammad Ershad Vs. Bangladesh & others. 5 MLR (2000) (HC) 267.

BANGLADESH POWER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

Citation: 7 BLD (HCD) 61

Case Year: 1982

Subject: BANGLADESH POWER DEVELOPMENT BOARD

Delivery Date: 1970-01-01

BANGLADESH POWER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

Rule—21(b)

Whether non graduation is a bar for promotion to the post of Deputy Director—Deputy Directorship is non-selection post—Meritcum-seniority is the criterion for promotion to this. post—Up to the ranks of Superintending Engineer and Director promotion is subject to the examination and test provided for in the Rules, themselves—Promotions have not been made subject to possession of requisite academic qualifications for each post—Each employee claiming merit and seniority and passing examination and test can rise up to the ranks of Superintending Engineer and Director.

M. M. Ismail Vs. Bangladesh Power Development Board and others; 7 BLD (HCD) 61.

Power Board cannot use an extra legal document—Whether the Directory published in 1969 setting for the uniform standard of qualification to be followed at the time of appointment and promotion of the personnel of the erstwhile authority can be used. by the Power Board in the same manner as it used to do before the framing of the Rules in 1982— This directory is not a Rule or a Circular or an office order—It has never been formally adopted by the Power Board at any time nor it has any statutory force—The Power Board cannot use an extra legal document which it has not adopted after the framing of Rules in 1982.

M. M. Ismail Vs. Bangladesh Power Development Board and others; 7BLD (HCD) 61.

Bangladesh Public Service Commission (Consultation) Regulations, 1979

Citation: 2, MLR (1997) (AD) 257, 5 MLR (2000)(AD) 141

Case Year: 1979

Subject: Bangladesh Public Service Commission

Delivery Date: 2018-04-01

Bangladesh Public Service

Commission (Consultation)

Regulations, 1979

Not ultravires of the Constitution—

The President, is empowered by article 133 of the Constitution to make rules and regulations. The Public Service Commission (Consultation) Regulation made by the President even in the absence of an Act of Parliament is not ultravires of the Constitution.

Bangladesh represented by the Secretary Ministry of Establishment Vs. Shafiuddin Ahmed and others. 2, MLR (1997) (AD) 257.

Regulation 9- Consultation with Public Service Commission when not necessary—

Public Service Commission shall have to be consulted while imposing major penalty Spori a Class I or Class II Government Servant. But where a class III post is upgraded into class II post but the incumbent is not up-graded to the post pending framing of Recruitment Rules, Public Service Commission need not be consulted when he is compulsorily retired from service in a departmental proceeding.

Abdul Khaleque (Md) Vs. Secretary, Ministry of Law, Justice & Parliamentary Affairs, Government of Bangladesh & others. 5 MLR (2000)(AD) 141.

Bangladesh Red Crescent Society Order, 1973

Citation: 10 BLD (AD) 267

Case Year: 1973

Subject: Bangladesh Red Crescent Society

Delivery Date: 2018-04-01

Bangladesh Red Crescent Society Order, 1973

(P.O. No.26 of 1973)

Article 4, 7(6) and 24— Right to form Association as envisaged by article 38 of the Constitution is not like that to form the Red Crescent Society—

It is clear that though the society is an association of persons it is an association sui generis. Though membership to the society is open to all the citizens of Bangladesh, who comply with the terms and conditions laid down in the rules framed under the Order, no one has the right to form a similar society. The Red Crescent Society is a creation by statute and as such is a body corporate which cannot like other associations be dissolved except by law made for the purpose.

Md. Asaduzzam.an Vs. Bangladesh represented by the Secretary Ministry of Law and Justice and others. 10 BLD (AD) 267.

Bangladesh Shilpa Rin Sangstha Order, 1972

Citation: 4, MLR (1999) (AD) 228, 1, MLR (1996) (AD) 108,

Case Year: 1972

Subject: Bangladesh Shilpa Rin Sangstha

Delivery Date: 2018-04-25

Bangladesh Shilpa Rin Sangstha Order, 1972

(P.O. 128 of 1972)

Section 34(5)— Ouster of jurisdiction of Civil Court-Code of Civil Procedure, 1908—Order 7 rule 11— Distinction between rejection of plaint and non-entertainment—

Bangladesh Shilpa Rin Sangstha Order 1972 is a special statute containing substantive and procedural provisions with over-riding force over all other laws. Provision of sub-section (5) of section 34 of the P.O. 128 of 1972 clearly ousts the jurisdiction of Civil Courts to entertain any suit in respect of reliefs enumerated under clause (a) (i) (ii) and (iii) thereof. In view of the express provision of the ouster clause, no suit in respect thereof is entertainable by the Civil Court. Rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure, 1908 and non-entertainment of suit by Civil Court under section 34(5) of the Bangladesh Shilpa Rin Sangstha Order. 1972 are distinctly different aspects operating under two different contexts. (Both appeals are allowed on this majority view).

His Lordship Mr. Justice B.B.Roy Chowdhury on the contrary held, where no forum for remedy against any injustice is provided under the law, the absolute bar to the jurisdiction of the civil court can not operate, because such a proposition will perpetrate injustice without remedy.

Bangladesh Sangstha Vs. Rahman Textile Mills Ltd. & others— 4, MLR (1999) (AD) 228.

Constitution of Bangladesh—Article 104— Doing complete justice— Bangladesh Civil Service (Foreign Affairs) Seniority Rules, 1983— Question of seniority—

Razivl Hasan Vs. Badiuzzaman Khan and others 1, MLR (1996) (AD) 108.

Constitution of Bangladesh— Article 103- Scope of interference by Appellate Division—

Unless there was any miscarriage of justice and manifest illegality apparent on the face of the record, concurrent findings of fact arrived at by the trial court as well as by the lower appellate court which have been affirmed by the High Court Division in revision cannot be interfered with by the Appellate Division under article 103 of the Constitution.

Bangladesh Territorial Water and Maritime Zone Act, 1974

Citation: 32 DLR (AD) 194

Case Year: 1974

Subject: Bangladesh Territorial Water and Maritime Zone

Delivery Date: 2018-04-01

Bangladesh Territorial Water and Maritime Zone Act, 1974

(Act. No.XXVI of 1974)

The Customs Act, 1969— Limits of the Customs waters— Section 3- Limits of Territorial waters and Maritime belts and customs waters-

The limit of territorial water has been fixed at twelve nautical miles and also the economic zone of Bangladesh by notification in pursuance of the statutory provision which does not stand in conflict between the provisions of the two enactments. Therefore the courts have no function and authority to assume the powers to decide what should be the limits of territorial waters of Bangladesh.

Bangladesh Vs. Somboon Asavahan, (1980) 32 DLR (AD) 194.

Bangladesh Transfer of Immovable Property (Temporary Provision) Order, 1972

Citation: 5 MLR (2000) (AD) 25, 4, MLR (1999) (HC) 9,

Case Year: 1972

Subject: Bangladesh Transfer of Immovable Property

Delivery Date: 2018-04-01

Bangladesh Transfer of Immovable Property

(Temporary Provision) Order, 1972

(P.O. No. 142 of 1972)

Article 6- Impleading Government as necessary party -Plea of non-joinder when can be raised—

As provided under article 6 of the P.O. No. 142 of 1972 Government of Bangladesh is required to be impleaded as party to suit with a view to preventing transfer of certain immovable property having public interest. Government need not be impleaded as party to a suit which does not involve Government interest. Moreover the plea of non-joinder should be raised at the earliest opportunity.

Abdul Qayum Khan VS. Md. Abu Yousuf Mirdha and others- 5 MLR (2000) (AD) 25.

Article 4, 5 and 7— Bar on the registration of deed of transfer of immovable property without being accompanied by affidavit and forfeiture of the property so transferred to the Government.

The object of the law is to restrict the transfer of immovable property involving public interest. When the transfer does not involve public interest it does not fall within the mischief of this law. Further omission to mention any particulars in the affidavit does not render the transfer void and the property under such transfer forfeited to the Government.

Khaleda Rahman Vs. Mohammad AH- 4, MLR (1999) (HC) 9.

Banking Companies Act, 1991

Citation: 5 MLR (HC) 177, 4, MLR (1999) (AD) 265, 4, MLR (1999) (AD) 398, 5 MLR(2000)(AD) 44, 5 MLR (2000) (HC) 137, 2, MLR (1997) (HC) 273, 5 MLR (2000) (AD) 199, 5 MLR (2000) (AD) 264

Case Year: 1991

Subject: Banking Companies

Delivery Date: 2018-04-01

Banking Companies Act, 1991

Section 14— Puts bar on holding shares by individual share-holder beyond the statutory limit—

BRAC being a non-profit making voluntary charitable Non-Government Organisation can not engage itself in any commercial or banking business which is opposed to section 20 of the Societies Registration Act, 1860 and also violative of section 14 of the Banking Companies Act, 1991. The issue of No-objection by the Bangladesh Bank and the issue of Certificate of Incorporation by the Registrar of Joint Stock Companies being violative of the express provisions of law and the rules of discipline in financial sector are illegal and are as such declared void and of no legal effect. Petitioner being a financial expert of high standing has locus stand! to invoke the jurisdiction of the High Court Division under article 102 of the Constitution.

Mozaffer Ahmed (Professor) Vs. Bangladesh Bank and others. 5 MLR (HC) 177.

Section 17— Notice to the Director of a Bank Company in the event of his failure to repay the loan consequently resulting in falling his office vacant—

The Bangladesh Bank has been bestowed with strong regulatory power over the functioning of the Bank Companies under section 17 of the Banking Companies Act, 1991. Whenever a director of a Bank Company fails to repay the loan within the stipulated time section 17 provides for giving notice to him through the Bangladesh Bank to which he can make reprepresentation within the time mentioned therein. Bangladesh Bank has absolute jurisdiction to give decision on the matter. Unless the notice suffers from any legal infirmity, High Court Division has no jurisdiction to interfere with the same under article 102 of the Constitution.

Saiful Alam (Md.) alias Mosudul Alam Chowdhury Vs. Bangladesh Bank and others. 4, MLR (1999) (AD) 265.

Section 17(1)— Notice to the defaulter director— Authority of Bangladesh Bank—

Under Section 17(1) of the Banking Companies Act, 1991, the Bangladesh Bank is empowered with the authority to determine the genuineness and relevance of the Bank's documents and loan and liability of the defaulter director and as such the dispute relating therewith does not fall within the writ jurisdiction of the High Court Division.

Aminul Haque Chowdhury Vs. Bangladesh Bank and another- 4, MLR (1999) (AD) 398.

Section 17- Notice as to vacating directorship on ground of being defaulter—

Notice under section 17 of the Banking Companies Act, 1991 as to vacating the directorship for being defulter is not invalid by reason of its containing items of loan some of which are admitted and connection with some others are denied by the defaulter loanee.

Khushi Akhtar (Mrs.) Vs. Banglaesh Bank and others. 5 MLR(2000)(AD) 44.

Section 17(1)— Defaulter director of a Company looses his directorship— Rescheduling of the loan and payment of 10% loan is of no avail—

When a director of a Company is a defaulter he looses his directorship on the expiry of two months period after the specified date mentioned in the notice under section 17(1) of the Banking Companies Act. Rescheduling of the loan and payment of 10% loan money does not save the defaulter from loosing his directorship. Entire loan money need to be paid.

Mohammad Yakub & another Vs. Bangladesh Bank & others- 5 MLR (2000) (HC) 137.

Section 27- Restriction on loan and advances on guarantee— Office of defaulter director falling vacant—

Section 27 imposes restrictions on granting loans and advances by the Banking Company on the guarantee of any of its directors or of any members of the family of any director. Office of a director shall fall vacant if he fails to pay any loan or advance taken by him or he fails to pay any such amount due on any guarantee executed by him on the expiry of two months of his failure to do so within the period specified in the notice served upon him by the Banking Company through the Bangladesh Bank. A director receiving such notice may explain his conduct to the Bangladesh Bank within thirty days of the receipt of the notice with copy to the Banking Company which issued the notice. In this regard the decision of the Bangladesh Bank shall be final.

Habibullah and others Vs. Bangladesh Bank and others- 2, MLR (1997) (HC) 273.

Section 46— Removal of Managing Director—

Order of removal / suspension of Managing Director of the Arab Bangladesh Bank does not require to contain the reasons therein. But while forming opinion and issuing the order by the Bangladesh Bank there should be materials on record as the basis thereof to justify the legality of the order if and when challenged.

Abdur Rahim Chowdhury Vs. Bangladesh Bank & others. 5 MLR (2000) (AD) 199.

Section 91— Election of director— Nomination of Candidate as contemplated in Article 114 of the Articles of Association of IFICB—

A seven days prior notice before the Annual General Meeting as to the candidature of a share-holder for election as director either in his own handwriting or of his agent with his endorsement shall have to be left is the office of the Company otherwise there will be no valid nomination consequently leading to the cancellation of the election of such a candidate as director.

A.S.F. Rahman & another Vs. A.M. Agha Yousuf & others- 5 MLR (2000) (AD) 264.

Bankruptcy Act, 1997

Citation: 5 MLR (2000) (AD) 297

Case Year: 1997

Subject: Bankruptcy

Delivery Date: 2018-04-01

Bankruptcy Act, 1997

Section 28— Bankruptcy Suit-Cannot be dismissed on prayer of the defendant—

Disputed question of fact cannot be decided in writ jurisdiction. Whether the loanee has ability to repay the loan money is a disputed fact which can be adjudicated by the Bankuruptcy court. The suit cannot be dismissed on the prayer of the Gaurantor, defendant.

Emdadul Haque Bhutyan Vs. Bankruptcy court, Narayangory and another. 5 MLR (2000) (AD) 297.

Bengal Tenancy Act, 1885

Citation: 5 MLR(2000) (AD) 48, 4, MLR (1999) (AD) 420, 3 BLD (AD) 1, 4 BLD (HCD) 282, 1 BLD (AD) 367, 17 DLR (SC) 392, 30 DLR (SC) 81, 10 DLR (HC) 632

Case Year: 1885

Subject: Bengal Tenancy

Delivery Date: 2018-04-01

Bengal Tenancy Act, 1885

Section 103-B— Presumption of C.S. Khatian

When a registered Nadabipatra of 30 years old as to the C.S. Khatian being wrong is produced and supported by the admission of the plaintiff and the evidence of defendant, the presumption of correctness of the C.S. Khatian stands rebutted.

Afzal Sikder being dead his heirs Abdus salam and others Vs. Md. Giasuddin Sikder and others- 5 MLR(2000) (AD) 48.

Section 86- Surrender of tenancy in favour of land lord - Nature of proof required—

Claim of surrender of tenancy by the C.S. recorded tenants in favour of the land lord and subsequent settlement thereof in favour of the defendants must be proved by documentary evidence or by certain circumstantial evidence of convincing nature.

Gola Bewa (Most.) & others Vs. Md. Abdw Rashid & others- 4, MLR (1999) (AD) 420.

Section 26-C- Oral gift of agricultural land by a Muslim without registered instrument whether valid—

As soon as a declaration of gift is made by the donor and the donee accepts the gift followed by the delivery of possession of the land, the gift becomes complete. Such an oral gift cannot be destroyed by reason of the absence of registered instrument under section 26-C of the B.T. Act.

Jabed Ali Vs, Abu Sheikh being dead his heirs Md. Naimuddin and others- 3 BLD (AD) 1.

Section 26-C- Oral Istafa/surrender

whether valid-Oral surrender (Istafa) is valid and does not require any registered instrument.

Seratonnessa and others Vs. Dil Maraud and others. 4 BLD (HCD) 282.

Section 161 and 167- Encumbrance-What it constitutes—

Sub-lease created by an under-raiyat having no occupancy right is not an encumbrance and need not be annulled. But a sub-lease created by a raiyat having occupancy right is an encumbrance and requires to be annulled under section 167 of the B.T. Act.

Sunil Kumar Biswas Vs. Mohammad Idris and others. 1 BLD (AD) 367.

Section— 103-B— Presumption of record of rights and its probative value—

The presumption that attaches to a record of rights under section 103-B of the Bengal Tenancy Act, 1885 is only this, that the entry in the record of rights represents the correct state of affairs on the date it was prepared. Whether that state of affairs is continued even afterwards is not a presumption which arises under this section but under section 114 of the Evidence Act, and its probative value diminishes progressively with the lapse of time. The older the record the less is its presumptive value. This is a matter, therefore, of proof and it merely has the effect of shifting the onus upon the other side.

Promatha Nath Chowdhury Vs. Kanai Mondal (1965) 17 DLR (SC) 392.

Section 103-B— Presumption of record of rights—

Every entry in the record of rights finally published under section 103-B of the Bengal Tenancy Act, 1885 shall be evidence of the matter refered to in such entry and shall be presumed to be correct until it is proved to be incorrect.

Akrab Ali Vs. Zahtruddin Karl (1978) 30 DLR (SC) 81.

Section 153 (6)— Concurrent jurisdiction— Settled principle is that a case in such situation should be instituted in the court of lowest grade having concurrent jurisdiction—

Where the High Court and the court of District Judge are vested with concurrent jurisdiction as envisaged under section 153 (b) of the B.T. Act, the underlying principle is that the case should be instituted in the court of lowest grade having concurrent jurisdiction.

Fazlul Karim Khan Vs. Nademzzaman. (1958) 10 DLR (HC) 632.

Bills of Lading Act, 1856

Citation: (1959) 11 DLR (HC) 133, 2, PLR (I960) (WP) 199, 30 DLR (1978) (HC) 94

Case Year: 1856

Subject: Bills of Lading

Delivery Date: 2018-04-01

Bills of Lading Act, 1856

(Act IX of 1856)

Bill of lading— Evidence of contract—

Bills of Lading though not forming the contract of carriage of goods by sea themselves are first class evidence of contract between the parties.

(1959) 11 DLR (HC) 133.

Lighterage and Demurrage—

The words “lighterage^” and 'demurrage' appearing in the bill of lading and the receipt are used in conjunction and support the contention that demurrage was to be charged in respect of and connected with the use of lighters. Amount charged under the head 'lighterage' and 'demurrage' was only to cover demurrage charge payable to the Port Authority who burdened the shipowners if they stayed at the outer anchorage beyond the time allowed by them.

2, PLR (I960) (WP) 199.

"Bill of Lading" and "Charter party"—

The bill of lading is a document of title lo the goods and may as such be transferred to a third party who makes it subject to everything that appears thereon. It is therefore, both transferable and negotiable. Usually as between carrier and shipper, the contract is contained in the charter-party and the bill of lading is not evidence of the contract but only receipt for the goods and at the same time it is also document which enables the shipper to transfer the goods to a consignee. Therefore, apart from the receipt, the bill of lading in such case is also a document of title.

Abu Bakar Siddique Vs. M.V. Aghia Thalastni. 30 DLR (1978) (HC) 94.

Carriage of Goods by Sea Act, 1925

Citation: 11 MLR (2006) (HC) 156

Case Year: 1925

Subject: Carriage of Goods by Sea Act

Delivery Date: 2018-03-11

Carriage of Goods by

Sea Act, 1925

Carrier is not liable for the loss or damage caused by act of God—

Tsunami of 26th December 2004 which caused unprecedented damage and colossal loss of life and property was certainly an act of God and as such the carrier vessels can not be liable for any such damage which are exempted under the force majeure clause. Therefore the learned judge of the Admiralty Court directed the immediate release of the M.V. vessels from arrest. HRC Shipping Limited Vs. M. V. X-press Manaslu and MV. X-press Resolve and others 11 MLR (2006) (HC) 156.

Child Marriage Restraint Act, 1929

Citation: 22 DLR (SC) 289

Case Year: 1929

Subject: Child Marriage Restraint

Delivery Date: 2018-04-01

Child Marriage Restraint Act, 1929 (XIX of 1929)

Section 2— Marriage of a girl of less than 16 years age is valid— Adult husband including those solemnising the marriage are liable to criminal offence—

If a girl below the age of 16 years is married in violation of the prohibition imposed by the Child Marriage Restraint Act, 1929, such marriage by itself does not become invalid although the adult husband contracting the marriage or the persons who have soleminsed the marriage may be held criminally liable.

Most Bakshi Vs. Bashir Ahmed. (1970) 22 DLR (SC) 289.

Code of Civil Procedure, 1908

Citation: 1, MLR (1996) (AD) 298, 1, MLR (1996) (HC) 327, 4, MLR (1999) (HC) 99, 4, MLR (1999) (HC) 205

Case Year: 1908

Subject: Code of Civil Procedure

Delivery Date: 2018-04-25

Code of Civil Procedure, 1908

Order XXH rule 3 and 4- Substitution of legal representatives—When abatement does not operate—

When legal representatives are brought on record in any incidental proceeding arising out of the original suit or at the stage of appeal or revision, no further substitution of the legal representatives of the deceased defendant in the original suit will be necessary after getting back the records from the higher court. The substitution of the legal representatives in the incidental proceeding will be sufficient substitution in the original procerdings as well and as such there will be no abatement of the suit in such cases which is a settled law in this sub-continent being consistently followed for over a century.

Md. Hossain Khan and others Vs. Habibunnessa and others 1, MLR (1996) (AD) 298.

Sectlon-10—Stay of execution—

Application under section 10 in a suit subsequently instituted for the selfsame matter for staying the execution proceeding of a previous decree is not maintainable.

Abdul Latif Mia and others Vs. Most Shams annahar and others 1, MLR (1996) (HC) 327.

Section 115— Scope of interference in Revision—

Concurrent findings of the trial Court as well as of the lower appellate Court may be set aside if ihe same are perverse due to misleading of evidence on record occasioning failure of justice.

Mofizullah Bhuiyan and others Vs. Sree Narayan Chandra Roy and others 4, MLR (1999) (AD) 127.

Order 41 rule 23, 24 and 27-Remand—

When there are sufficient evidence on record the appellate court has to decide the appeal on merit and he can not send the suit on remand.

Abu Syeed Sheikh and others Vs. Md. Mqjibur Rahman Akand being dead his heirs Sharifan Bewa and others 4, MLR (1999) (HC) 99.

Section 26 rule 18— Appointment of Commission— Service of notice of appointment of Commissioner and holding of local investigation—

It is the mandatory requirement of Order 26 rule 18 of the Code of Civil Procedure, 1908, that notice of the appointment of Commissioner for local investigation shall be given to the parties. The report of the local investigation held behind the back of the parties without notice being violative of the principle of natural justice is illegal and not admissible in evidence. However if the local investigation is held after giving notice thereof by the Commissioner this can be deemed to be sufficient compliance with the requirements of law. A judicial order must be speaking one, otherwise it suffers from legal infirmity for non-application of judicial mind.

Mahatab Ali Vs. Sree Kartick Chandra Karmakar and others 4, MLR (1999) (HC) 205.

Code of Criminal Procedure, 1898

Citation: 13 MLR (2008) (AD) 52, 12 MLR (2007) (AD) 351, 13 MLR (2008) (AD) 17

Case Year: 1898

Subject: Code of Criminal Procedure

Delivery Date: 2018-03-12

Code of Criminal Procedure, 1898

Section 195(l)(c) and 476— Power of appellate court to lodge complaint against forgery of documents used in connection with judicial proceedings—

As provided under section 107 of the Code of Civil Procedure, 1908 the court of appeal has all the powers of the trial court. It is competent to do what the trial court failed to do. It can make complaint under section 195(l)(c) read with section 476 of the Code of Criminal Procedure in respect of forgery of document used in the judicial proceedings before it. Messers N.F.M Universal Estate Ltd. represented by its Managing Director Abdul Awal Minto Vs. A.N.M Obaidul Islam being dead his heirs Gidshan Begum and others 13 MLR (2008) (AD) 52.

Section 403(1)— Provides that a person tried and convicted by a court of competent jurisdiction shall not be tried and punished again for the same offence— Constitution of Bangladesh— Article 35(2)— Prohibits trial and conviction of a person twice for the same offence— General Clauses Act, 1897— Section 26— Contains similar provision against trial and conviction of a person more than once for the same offence—

From the above provisions it is abundantly clear that a person once tried and convicted by a court of competent jurisdiction for a particular offence shall not be tried and punished for the second time for the same offence. The appellant upon conviction by a Special Martial Law court though having no jurisdiction, had already served out the most part of the sentence and was then released on amnesty. The apex court held it inappropriate and against the interest of justice to reopen and restart the case afresh after lapse of long period and in that view set aside the order of the Sessions Judge. Mohammad Ullah Vs. Sessions ]udge, Noakhali and others 12 MLR (2007) (AD) 351.

Section 561A— Quashment of proceedings—

Unless there is a situation as contemplated under section 12 a Chairman can not be placed under suspension. Where in a proceedings under section 561A Cr.P.C for quashment of conviction and sentence a rule has been issued and the convict-petitioner is released on bail the criminal proceedings against him is held still pending and in that view of the matter the apex court declared the impugned suspension order illegal and of no legal effect. Government of Bangladesh represented by the Secretary Ministry of Local Government and others Vs. Md. Fariduddin Talnkder 13 MLR (2008) (AD) 17.

Companies Act, 1913

Citation: 1, MLR (1996) (AD) 173, 1, MLR (1996) (AD) 420, 4 MLR (1999) (HC) 193, 5 MLR (2000) (HC) 200, 5 MLR (2000) (HC) 263

Case Year: 1913

Subject: Companies Act

Delivery Date: 2018-04-09

Companies Act, 1913

(Act No.VII of 1913)

Section 38(3)— Appeal against decision of single judge of High Court Division—

The Original Side Rules framed by the Calcutta High Court under clause 37 of the Letters Patent, 1865 have not been preserved by Law Reforms Ordinance, 1978. Therefore an appeal against the decision of a single company judge of the High Court Division lies to the Appellate Division under Article 103 (1) of the Constitution.

Moqbul Ahmed & others Vs. Ahmed Impex (Pvt) Ltd. 1, MLR (1996) (AD) 173.

Regulation 112 of Table A of the First Schedule— Transfer of shares— without notice—

Service of notice for transfer of Shares and of Board meeting for its approval must be made by registered post as contemplated by Regulation 112 of the Table A of the First Schedule. Service of notice under certificate posting is no service in the eye of law. Transfer of shares without valid notice is illegal.

United Chemicals and Pharmaceuticals Ltd. and others Vs. Niranjan Dev and others. 1, MLR (1996) (AD) 420.

Section 43— Pover of the Company Court to rectify the Register of Members of a Company— Lmitation Act, 1908 not applicable to company matters—

Under section 43 of the Companies Act, 1994 the Company Court has wide power to rectify the Register of Members of the Company following transfer of shares. As provided under article 40 of the Articles of Association the Council of the Dhaka Stock Exchange has to decide the question of rectification of the Register within two months of lodging the transfer documents with the Exchange and when refused the parties shall be given notice thereof. It is not permissible to keep the matte: hanging for long time. The Limitation Act, 1908 does not apply to company matters. There is option for the party to go for civil suit when question of fact requiring detailed evidence is involved but that does not bar the jurisdiction of the Company Court in the matter.

Matiur Rahman (Md). Vs. Dhaka Stock Exchange Ltd. and another. 4 MLR (1999) (HC) 193.

Section 233— Protection of interest of minority Share-holders—No dividend can be claimed on revaluation of the assets of a company and no "quasi equity loan" can be created thereon—Pending civil suit is no bar to the determination of dispute by the Company Bench of the High Court Division—

No dividend can, be claimed by any shareholder on revaluation of the assets of any Company without realisation of the value thereof by disposing of the same arid no "quasi equity loan" can be created thereon. Issue of debentures with 13.5% interest on such quasi equity loan being detrimental to the interest of minority shareholders is illegal and void. Pending civil suit on the same matter is no bar to the determination of dispute by the High Court Division where no detail investigaiion is warranted.

AMB Sajdar (Dr.) and another Vs. Government of Bangladesh represented by the Secretary of Industries & others. 5 MLR (2000) (HC) 200.

Section 241— Winding tip of a company—

When the Managing Director who is also the Chairman did not convene any Annual General Meeting, declare any dividend, submit any return and on the contrary used the total fund of the company for his own cause and a dead lock prevailing during last 14 years to the total deprivation of the shareholders, all these are the most cogent grounds for winding up the company.

S.M.M. Yousuf Vs. Bismillah Shipping Lines (Put. Ltd.) and others. 5 MLR (2000) (HC) 263.

Constitution of Bangladesh 1972

Citation: 4, MLR (1999) (HC) 358, 1, MLR (1996) (HC) 338, 5 MLR (2000) (AD) 89), 2, MLR (1997) (HC) 137, 3, MLR (1998) (HC) 73, 4, MLR (1999) (AD) 89, 1, MLR (1996) (AD) 49, 2, MLR(1997) (HC) 15, 4, MLR (1999) (AD) 316, 2, MLR (1997) (HC) 326, 4, MLR (1999) (AD) 4

Case Year: 1972

Subject: Constitution of Bangladesh

Delivery Date: 2018-04-01

Constitution of Bangladesh

Article 7, 11, 15, 19, 27. 31, 32 and 112— Eviction of Slum-dwellers— Without alternative arrangements— Violative of fundamental rights—

In a democratic State like ours right to life, shelter, livelihood and respect for dignity and worth of human person are fundamental rights which shall be guaranteed as contemplated by our Constitution and it is the responsibility of the State to secure social welfare by economic growth providing basic necessities of life. Slum-dwellers are homeless and hearthless people being driven by misfortunes and natural calamities took shelter in slums many of whom are women, innocent helpless persons and disabled. Their eviction by bulldozing the shanties without alternative rehabilitation programme is disapproved. Order of the Registrar in administrative capacity is also an order of the Supreme Court which is equally binding upon all concerned as mandated by article 112 of the Constitution.

Ain O Salish Kendra (ASK) and others Vs. Government of Bangladesh and others. 4, MLR (1999) (HC) 358.

Article 15 and 19—Fundamental State principles—

Although fundamental principles of state policy are not judicially enforceable such principles cast obligation to treat citizens equally while managing affairs of the state.

M.A. Wahab & others Vs. Secretary, Ministry of Land 1, MLR (1996) (HC) 338.

Article 22— Separation of the Judiciary— Separate Service and Pay Commission for judicial service may be formed— No constitutional amendment is necessary for separation of the judiciary which may be effected by making Rules by the President—

Article 22 imposes the duty upon the State to ensure separation of the judiciary from the executive organs of the State. The judicial service as defined under article 152(1) is a distinct and separate service not to be equated with other cadre services. Article 109 vests in the High Court Division the power of control and superintendence over the subordinate courts and tribunals. The President is empowered by article 115 to appoint persons in the judicial service and Magistrates exercising judicial functions in accordance with the rules made by him in that behalf. As provided under article 116 the President shall exercise the control including power of posting, transfer, promotion and discipline of the judicial officers and the judicial magistrates in consultation with the Supreme Court. The judicial officers and the magistrates exercising judicial functions shall be independent as per provision of article 116A. There are already the provisions providing for the separation of the judiciary from the executive organs of the State and as such no constitutional amendment is necessary and for effecting full and complete separation the President can do so by making rules as may be necessary. The judicial sendee being distinct and separate as defined in the Constitution cannot be subordinate to the executive organs of the State and they cannot submit to the jurisdiction of the Administrative Tribunal and their pay and service conditions may be determined by a Separate Service and Pay Commission. The cancellation of the G. O. in respect of the scale of pay of the judicial officers being violative of the fundamental rights guaranteed under article 27 is declared void and of no legal effect. (Latter partly modified by Appellate Divisioi/s decision reported in 5 MLR (2000) (AD) 89).

Masdar Hossain (Md) and others Vs. Bangladesh represented by the Secretary Ministry of Law and Justice and others 2, MLR (1997) (HC) 137.

Article 25— Article 102— Locus standi-Extradition—No legal bar on way of extradition—Public interest litigation not tenable—

Saiful Islam Dildar, the Secretary General of Bangladesh Human Rights Commission having no common interest with Anup Chetia, Secretary General of ULFA an Assamese and Indian national and a leader of secessionist movement has no locus stand! and is not an aggrieved person and as such can not invoke the writ jurisdiction seeking courts' intervention in the matter of handing over Anup Chetia to India. The application is also premature because it has been filed on the basis of a news item published in news paper. As provided under Article 25 of the Constitution and Section 4 of the Extradition Act, 1974 there is no legal bar on the way of extraditing Anup Chetia on Indian request.

Anup Chetia Secretary General ULFA & another Vs. Government of Bangladesh and others. 3, MLR (1998) (HC) 73.

Article 27— All pensioners are not equal—

All Pensioners are not on equal footing and are not equally circumstanced. They are governed by different rules and table of calculations subject to changes from time to time and as such they do not form a homogeneous class by themselves. Therefore there is nothing wrong in their classification and the Government is perfectly within its legal bound to make classifications of the pensioners which is not discriminatory offending article 27 of the Constitution.

Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladesh represented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.

Surplus Publice Servant Absorption Ordinance, 1985

Section 5- Right of absorption-Article 27 of the Constitution-Discrimination—

The respondent is held to have been absorbed under the Ordinance. Otherwise it will amount to endorsing a double standard on the part of the Government giving benefit to a particular person and denying the same to another on equal footing offending the equality clause of article 27 of the Constitution.

The Director General NSI Vs. Sultan Ahmed. 1, MLR (1996) (AD) 49.

Article 31—Protection of life—What it means—

Protection of life as contemplated under article 31 does not mean protection of any illegal action of any person. The local authority has the right to evict unauthorised occupant and recover possession by eviction.

Giasuddin Vs. Dhaka Municipal Corporation. 2, MLR(1997) (HC) 15.

Article 102- Scope of intervention in service matter—Article 29— Equality of opportunity of employment—

Mere preparation of list of some persons for appointment to certain posts does not create any vested right enforceable in law. But when on the basis of certain statutory-backing and Government decision, list is prepared of certain persons for appointment/absorption to certain posts and some of them are appointed and some are left out, the left out writ petitioners in the circumstances can certainly invoke the writ jurisdiction for intervention on ground of discrimination.

Secretary Ministry of Establishment, Government of Bangladesh and others Vs. Md. Jahangir Hossain and others. 4, MLR (1999) (AD) 316.

Article 31— Equal protection of law— Responsibility of the Government—

As provided under article 31 it is the responsibility of the. Government to give equal protection of law to its every citizen wherever he or she may be. The inaction on the part of the Government to take steps for repatriation of victim girl, daughter of the petitioner who being in the trap of the illegal traffickers has so long been languishing in the neighbouring country has been strongly disapproved as violative of article 27 and 31 of the Constitution and against the principle of fair play.

Abdul Gafur Vs. Secretary Ministry of Foreign Affairs, Government of the Peoples Republic of Bangladesh and another. 2, MLR (1997) (HC) 326.

Article 39— Freedom of expression and thought— Note Books (Prohibition) Act, 1980 Whether violative of —

Subordinate legislation must always be subject to the provision of the Constitution, the supreme law of the land.Note Books (Prohibition) Act, 1980 directly infringes the fundamental right guaranteed under article 39 of the Constitution and as such is unconstitutional and violative of article 39(2) of the Constitution.

(Per Latifur Rahman-J given in the dissenting judgment contrary to the majority decision)Bangladesh National Curriculum & Text Book Board Vs. A.M. Shamsuddin & others. 4, MLR (1999) (AD) 434.

Article 43— Protection in home against entry, search and seizure—

To be secured in home against entry, search and seizure is a fundamental right which cannot be curtailed except in the manner as provided under section 96 of the Code of Criminal Procedure, 1898. Search and seizure made in contravention of the requirements of law are not sustainable.

Government of Bangladesh & others Vs. Hussain Mohammad Ershad. 5 MLR (2000) (AD) 254.

Article 66(22)(d)- Disqualification-Determination of election dispute-Jurisdiction of High Court Division—

Acceptance of nomination by the Returning Officer is part of election process and is well within his (Returning Officer) jurisdiction. An objection against acceptance of nomination on ground of disqualification on conviction and sentence is an election dispute which can be adjudicated by Election Tribunal. The High Court Division has no jurisdiction under Article 102 of the Constitution to decide an election dispute except on ground of coram non-judice and malice in law.

A.K.M. Mayeedul Islam Vs. Bangladesh Election Commission and others. 1, MLR (1996) (AD) 230.

Article 67(l)(b)— Boycott means absence without leave—

Walkout, consequent non-return and boycott by whatever epithet it is called mean the same thing i.e. absent without leave of Parliament resulting in the vacation of seat in Parliament.

Special Reference No. 1 of 1995. 1, MLR (1996) (AD) 21.

Article 68—Remuneration, allowance and Privilege of members of Parliament—The Members of Parliament (Remuneration and Allowances) Order, 1973 (P.O.No. 28 of 1973)— Provisions for import of duty free jeep and car by M.Ps are not unconstitutional—

Although the nomenclature of the P.O.No.28 of 1973 does not contain the word "privilege" but it is already there under article 68 of the Constitution in pursuance of which the P.O. was made. Article 3-C of the P.O. 28 of 1973 with regard to duty free jeep or car even if it offends conscience of a section of people outside the Parliament is not unconstitutional and the enactment of the provision is well within the legislative competence of the Parliament.

Ahmed Husain (Dr.) Vs. Bangladesh represented by the Secretary, Ministry of Law and Justice. 3, MLR (1998) (AD) 281.

Article 70— Dispute as to the seat of a Member of Parliament falling vacant—

Article 70 of the Constitution provides for vacating the seat in the Parliament of a member when he resigns from the party which nominated him as a candidate at the election or if he votes in Parliament against that party. The Speaker is under the constitutional obligation to refer such dispute to the Election Commission fordecision under section 3 of the Members of Parliament (Determination of Dispute) Act. 1980. The reference of the dispute to the Election Commission being statutory act or omission is amenable to the jurisdiction of the High Court Division for judicial review.

Secretary, Parliament Secretariat Vs. Khandker Delwar Hossain and others. 4, MLR (1999) (AD) 377.

Article 83— Levy without authority of an Act of Parliament—Not permissible—

No levy or tax can be imposed or collected except by or under the authority of an Act of Parliament. Customs duties on Yellow Book value of imported vehicles shall be payable. Order for releasing imported vehicles without Bank guarantee for the disputed claim is not proper.

Commissioner of Customs, Chittagong Vs. Ciasuddin Chowdhury and another. 2, MLR (1997) (AD) 282.

Article 92-payment of decretal money from consolidated fund— Code of Civil Procedure 1908- Order 21 rule 52, 56—

Article 92-authorises the Parliament to make laws for withdrawal of money from the Consolidated Fund. Code of Civil Procedure and the Bangladesh Bank Order 1972 are Acts of Parliament. Under section 71 of the Bangladesh Bank Order 1972 Governor is a Public officer and is obliged to obey court's order to pay the decretal money from the Consolidated Fund in satisfaction of decree under Order 21 or 52 and 56 of the Code of Civil Procedure.

Bangladesh Bank Vs. Mrs. Rana Awan and others. 1, MLR (1996) (HC) 271.

Article 102- Writ Jurisdiction of High Court Division in public interest litigation—

The expression 'any person aggrieved' if capsulised, amounts to what is broadly called 'sufficient interest'. Any person other than an officious intervenor or a wayfarer without any interest in the matter in dispute is qualified to be a person aggrieved and can maintain an action for judicial redress of public injury arising from breach of public duty or for violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. There can be no straight-jacket formula for determining 'sufficient interest' which of necessity, has to be decided in the facts of each case. The mechanism under article 102(1) for enforcement of Fundamental Rights can also be shared by an individual in common with others when the rights pervade and extend to the entire population or territory and in such cases any member of the public or an indigenous association suffering common injury or common invasion is a person aggrieved arid has the right to invoke the jurisdiction under article 102.

Dr. Mohiuddin Farooque Vs. Bangladesh represented by the Secretary, Ministiy of Irrigation & Water Resources and Flood Control & others. 1, MLR (1996) (AD) 325.

Article 102- Writ Jurisdiction

Grant of lease of fisheries for three years for certain development scheme does not give any assurance of extension of the term of lease and as such there can be no question of promissory estoppel tolease out the said fisheries to other party. Writ fails.

Bagbari Poshim Matshajibi Samity Ltd. Vs. Government of Bangladesh. 1, MLR (1996) (HC) 304.

Article 102 (2)— read with section 7 of P.O. 16 of 1972— Enlistment of abandoned property—

When the owner of certain property is Bangladeshi national and never left the country, and was in possession thereof althrough, such property can not be enlisted in "Kha list" as abandoned property.

Syed Chand Sultana and others Vs. Government of Bangladesh. 1, MLR (1996) (HC) 310.

Article 102— Inter minis trial communication does not create any legal right—

A letter from one Secretary to other Secretaries of the Ministries informing decision of the Government to return unutilised excess land remaining as such for long time does not confer any title to the original owner and as such writ jurisdiction under article 102 cannot be invoked.

Kazi Aftabuddin & others Vs Bangladesh represented by Secretary Ministry of Land & others. 1, MLR (1996) (HC) 269.

Article 102— Confiscation of passport—

A Citizen of Bangladesh granted passport by the Government has the right to use it for travelling abroad and the said passport cannot be confiscated without any lawful authority and without opportunity to show cause.

Mrs.Nasrin Hossain Vs. Government of Bangladesh. 1, MLR (1996) (HC) 344.

Article 102 of the Constitution— Jurisdiction— Disputed facts—

The High Court Division cannot arrogate to itself jurisdiction of making assessment of facts under dispute.

Md. Abul Hashim Vs. Election Commission. 1, MLR (1996) (HC) 120.

Article 102—Writ petition when does not become infructuous—

A writ petition does not become infructuous because an adinterim order has been passed. If a Rule is discharged on such ground, the adinterim order also goes with the discharge order. A writ petition must be decided on merit irrespective of whether an interim order has been passed or not.

Bangladesh represented by the Secretary, Ministry of Education and others Vs. Md. Abdul Quader. 2, MLR (1997) (AD) 46.

Article 102— Scope of writ jurisdiction— Possession of lessee-Whether can be interfered with by administrative order restraining construction—

The title of land and forgery of deed are questions of fact which can be decided on the basis of evidence by a court of competent jurisdiction. Such matters cannot be decided by the High Court Division in its writ jurisdiction. Although the Government or the Deputy Commissioner have the right to order for holding inquiry into certain administrative matter, such orders are not of the nature passed in a proceeding under section 145 of the Code of Criminal Procedure and as such the person in possession of the land on the basis of lease cannot be restrained from proceeding with the construction works,rather his possession should be protected if there is any apprehension of breach of peace over the possession thereof.

Banamali Pal and others Vs. Md. Nazrul Islam and others 2, MLR(1997) (AD) 65.

Article 102— Discharge of writ petition on ground of non-prosecution—

There is no legal infirmity in the order discharging the rule in a writ petition on ground of non-prosecution for the reason of the writ petition becoming infructuous, passed by the High Court Division on an application of the writ petitioner after notice to the advocate concerned and hearing in presence of the advocates of both sides. Subsequent objection to the effect that the opposite party was not afforded opportunity to controvert the contents of the application is not sustainable in the eye of law.

Akhtaruzzaman Chowdhury Vs. Bangladesh represented by the Secretary Ministry of Commerce. 2, MLR (1997) (AD) 79.

Article 22 and 116—Separation of the Judiciary from the Executive— Constitutional amendment necessary—

The constitutional position in relation to the question of separation of the Judiciary from the Executive has undergone certain changes after the Fourth Amendment of the Constitution. That the separation as envisaged under article 22 can be effected by making Rules only and no constitutional amendment is necessary is not the correct proposition of law. In view of the constitutional provision contained in article 116, constitutional amendment is necessary which has to be done by the Parliament.

Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Met Masdar Hossain and others. 5 MLR (2000) (AD) 89.

Article 102— Addition of Party to a writ petition—

Where the writ petitioner claims relief challenging certain order of his employer who has already been made party to the writ petition, the present incumbent holding the post of Director General is not a necessary party to the writ petition because his fate depends on the success or failure of his employer who is infact the necessary and proper party.

Md.Mobarak Hossain Khan Vs. Azad Rahman and others. 2, MLR (1997) (AD) 81.

Article 102—Grant of adinterim injunction while issuing rule is not obligatory—

The Writ jurisdiction of the High Court Division is discretionary. No legal right is accrued merely because the petitioner has submitted tenders. Similarly ii is not obligatory to grant adinterim injunction, when a rule Nisi was issued. There is nothing illegal in the order refusing adinterim injunction.

Mohsin Mia (Mr.) Vs. Bangladesh represented by the Secretary, Ministry of Forest and Environment and others. 2, MLR (199 7) (AD)109.

Article 102— Despite alternative remedy writ jurisdiction can be invoked—

Although there exists alternative remedy by way of appeal under section 30 of the Special Powers Act, 1974, the jurisdiction of the High Court Division under article 102 of the Constitution isnot barred and it can well be invoked in exceptional circumstances when the petitioner satisfies it that he had reasonable ground for not availing of the remedy thereunder and such exercise of the jurisdiction can. be made with a view to preventing failure of justice and in so doing the High Court Division in its extraordinary jurisdiction cannot sit over the impugned judgment of the tribunal or quasi-judicial bodies as a Court of appeal but it can only decide the controversial legal issues on the basis of the facts and circumstances apperant on the face of the record.

Naser Ahmed & Babul Vs. Government of Bangladesh represented by the Deputy Commissioner Noakhali & another. 2, MLR (1997) (AD) 114.

Article 102— Army Act and Army Rule are not amenable to writ jurisdiction—

As the terms and conditions of service of an army personnel are governed by the Army Act and Army Rules, the writ jurisdiction of the High Court Division cannot be invoked in respect of violation of any such terms and conditions.

Colonel (Retd.) S.M. Reza Vs.The Secretary, Ministry of Defence and others. 2, MLR (1997) (AD) 243.

Article 102-Interim order— against development programme—

The High Court Division can not pass interim order which is likely to affect or prejudice or interfere with any development programme or otherwise harmful to public interest without reasonable notice to the Attorney General and without giving an opportunity of being heard and without having regard to the provisions of sub-clause (a) or (b) of clause (4) of Article 102.

Commissioner of Customs, Chittagong Vs. Giasuddin Chowdhury & another, 2, MLR (1997) (AD) 282.

Article 102(2)(a)(ll)— detention for non-payment of loan money— Not permissible—

Since there is no nexus between the non-payment of loan money and the grounds enumerated under section 3(l)(a) of the Special Powers Act, 1974, no detention under section 3(1 Ha) of Special Powers Act can be given for non-payment of loan money and as such the detention in the instant case being not authorised by law is illegal and of no legal effect.

Government of the People's Republic of Bangladesh Vs. Mirza Alt Ashraf and others. 2, MLR(1997) (AD) 300.

Article 102— Dispute as to factual aspects does not fall within writ jurisdiction—

The dispute as to the quantity of cargo involves factual aspects which can not be determined in the writ jurisdiction.

Ancient Steamship Company Ltd Vs Member (Appeal and Revision) Ministry of Finance, Government of Bangladesh and others. 2, MLR(1997) (AD) 302.

Article 102—Pending determination of the legality of cancellation order delivery order is improper—

Where in a writ petition cancellation of Fertiliser dealership licence has been challenged and the High Court Division has to decide the legality or propriety of the cancellation order, directing for giving delivery of required quota of fertiliser tothepetitioner tilldisposalof the writ petition is improper.

Bangladesh Chemical Industries Corporation represented by its Chairman and others Vs. Md. Abdul Sattar Shah. 2, MLR (1997) (AD) 313.

Article 102— Disputed question of fact cannot be decided in writ jurisdiction—

Whether certain property is abandoned property or not is a question of fact which cannot be decided by the High Court Division in Writ jurisdiction. Finding of the Court of Settlement on fact based on proper appreciation of evidence cannot be interfered with in writ jurisdiction.

Bangladesh represented by the Secretary, M/s Works Vs. Chairman, Court of Settlement and another. 2, MLR(1997) (AD) 378.

Article 102— Public interest prevails over private interest—

Public interest must always prevail over the private interest unless the private interest is so overwhelming that public interest should be subordinated to it. Discharge of imported food grains from the chartered ship at the anchorage involves public interest. What the judicial norms warrant is that the application to vacate the stay order should be filed in the Bench which granted the same.

Frank Shipping Ltd. Vs. Government of Bangladesh and others. 2, MLR (1997) (AD) 353.

Article 102— Re-instatement of a teacher when the dismissal is not approved by Board—

Resignation of the Headmaster of a Secondary School obtained by force and not approved by the Board of Intermediate and Secondary Education was not of any legal effect. The reinstatement of the said Headmaster by order of the Deputy Commissioner in exercise of Magistrial power though not within the statutory frame work was not interfered with as the same was not illegal and was done in furtherence of the cause of equity and Justice.

Gazi Shamsul Hoque Vs. Deputy Commissioner, Dhaka and another. 2, MLR (1997) (AD) 389.

Article 102—Dispute as to quality of goods cannot be decided in writ jurisdiction—

Contract may be cancelled if the buyer on testing finds the sample of goods below the quality of specification. Dispute as to the quality of the sample is a question of fact which cannot be determined in a summary proceedings under article 102 of the Constitution.

Nafco (Pvt) Ltd. Vs. Bangladesh Sugar and Food Industries Corporation and others. 2, MLR (1997) (AD) 402.

Article 102— Ouster of jurisdiction— Power of scrutiny of the Court — to what extent such ouster operates—

The settled principle of law is that even where there is ouster of jurisdiction express or implied the court has the power to scrutinise whether the alleged ouster exists or bars the jurisdiction of the court in the true sense of the term and to what extent. When there was departure from strict compliance with the relevant provisions of law, courts' jurisdiction to interfere is not barred.

Shahriar Rashid Khan and Mrs. Mahmuda Rahman Vs. Bangladesh represented by the Secretary, Ministry of Law and others. 2, MLR (1997) (HC) 25.

Article 102— Detention for prejudicialactivities—Maliciousdetention— Compensatory cost may be awarded—

Since detention involves curtailment of fundamental rights of freedom of movement and speech guaranteed under the Constitution, the order thereof must be based on specific genuine grounds relating to prejudicial activities. Malicious detention has to be viewed with serious concern and in appropriate cases apart from declaring such order as illegal exemplary compensatory cost may be awarded to be paid by the State as a deterrent measure so that the State instrumentalities do not indulge in reckless and malafide detention of its citizen curtailing the valuable fundamental human rights.

Bilkis Akter Hossain Vs. Bangladesh represented by the Secretary Ministry of Home Ajjairs & others. 2, MLR(1997) (HC) 113.

Article 102— Right to trade and profession— Fundamental rights guaranteed by article 40—

Flight to trade and profession is fundamental right guaranteed by article 40 of the Constitution and as such this right cannot be taken away without due process of law. Export Registration Certificate once granted cannot be cancelled without affording opportunity to the holder thereof of being heard and when such certificate is cancelled by the Controller of Imports and Exports merely being instrumental on the direction of the Ministry of Commerce, application under article 102 is maintainable despite the availability of alternative efficacious remedy by way of appeal to the Government since rendered meaningless in the facts and circumstances of the case.

Acqua Foods Limited and another Vs. The Controller of Import and Export & others. 2, MLR (1997) (HC) 130.

Article 102— The Legal Remembrancer's Manual, 1960— Has no statutory force— Government can change its lawyers (GP) (PP) like private client. It also can appoint G.P., P.P. beyond the age of 60 years—

The Legal Remembrancers' Manual has no statutory force. Government pleaders or Public Prosecutors appointed under the Legal Remembrancer's Manual have no legal character. Government can change its lawyer like a private client. Removal or change of Government pleader or Public prosecutor does not entitle them to invoke writ jurisdiction to challenge such removal. Government has the discretion to appoint Government pleader beyond the age of 60 years.

Kazi Mokhlesur Rahman Vs. Secretary Ministry ojLaw, Justice and Parliamentary Affairs. 2, MLR (1997) (HC) 177.

Article 102-Disputed question of facts— Cannot be decided in writ jurisdiction—

High Court Division cannot decide disputed question of fact in its extraordinary writ jurisdiction. The finding of fact of the Court of Settlement can be interfered with by the High Court Division in its writ jurisdiction only on the ground of non-consideration of material evidence on record and misconstruction of any provision of law which led to erroneous decision.

Akhtari Begum and another Vs. Court of Settlement, and another. 2, MLR(1997) (HC) 295.

Article 102— Consideration for promotion does not mean giving promotion—

The observations made in the judgment of the writ petition are of the nature of guidance. Such observations cannot form the basis of decree in any subsequently instituted suit. Promotion depends on seniority, efficiency, fitness and satisfactory service record. When the case of promotion is duly considered there is the sufficient compliance with the observation of the judgment. The term consideration does not necessarily mean that the incumbent must be given promotion.

AnsaruddinAimed Vs. Sadharan Bima Corporation and others. 3, MLR (1998) (AD) 18.

Article 102— No enquiry by officer below the rank of accused permissible-

No enquiry against accused officer can be held by person below his rank. Similarly no removal order can be passed without serving second show cause notice which are grossly violative of the principle of natural justice.

Majibur Rahman Akanda (Md) General Manager, Security Printing Press Corporation Vs. Monjur Morshed and others. 3, MLR (1998) (AD) 27.

Article 102 and 117(2)- Jurisdiction of Administrative Tribunal- Transferability of a Government servant—

Transferability of a Government servant is one of the conditions of service. Remedy as to his grievance about transfer lies in the Administrative Tribunal and not in the writ jurisdiction of the High Court Division as contemplated by article 117(2) of the Constitution.

Shamsun Nur Begum Vs. The Secretary of the Ministry of Health and Family Welfare and others. 3, MLR (1998) (AD) 68.

Article 102— Writ Jurisdiction-Disputed question of title can not be gone into in writ jurisdiction—

In a proceedings where disputed question of title is involved the jurisdiction of the High Court Division under article 102 of the Constitution is ousted.

Fatema Khatun and others Vs. The Deputy Commissioner, Dinajpur and others. 3, MLR (1998) (AD) 71.

Article 102— Resignation not accepted and kept unattended— resultant consequence—

When an employee of the BADC submitted conditional resignation under protest of certain situation, and the authority having not taken any action thereon and on the contrary he was granted promotion and increment in the scale of pay, there is in fact no resignation letter in the true sense of the term, the authority by its subsequent conduct giving a go bye to the said letter of resignation.

Bangladesh Agricultural Development Corporation and others Vs. Mahafuz Mia. 3, MLR (1998) (AD) 137.

Article 102— Scope of writ jurisdiction—Guardian and Wards Act, 1890— Section 25(1)—Family Courts Ordinance, 1985— Section 5— Custody of minor- Best interest of child is paramount consideration-

The settled principle of law is that in deciding the dispute as to custody of minor child the best interest and welfare of the child shall be the paramount consideration whether in a proceeding of the nature of Habeas corpus or in a proceedings for guardianship. When question of disputed facts of guardianshipand custody of minor child are concerned and when there is already a case to that effect pending before the Family Court, the dispute as to custody may well be decided by the Family Court in the light of evidence and not in the writ jurisdiction. However adinterim order as to custody of the child may be passed in a proceeding under article 102 of the Constitution to meet an emergent situation.

Abdul Jalil and others Vs. Sharon Laily Begum Jalil (Mrs). 3, MLR (1998) (AD) 265.

Article 102(l)(a)(i)— Holding office during pleasure of the President—Army Act and Rules are not amenable to writ jurisdiction—

The Chief of ArmyStaff holds office in trust during the pleasure of the President. The remedy against his compulsory retirement lies by way of representation and memorandum to the President under the Army Act and Rules and not in the writ jurisdiction of the High Court Division and Civil Court.

Lieutenant General Abu Saleh Mohammad Nasim (Retd.) B.B.P.SC. vs. Bangladesh represented by the Secretary Minis try of Defence. 3, MLR (1998) (AD) 278.

Article 102— Adinterim injunction— Scope of interference—

Appellate Division of the Supreme Court does not feel inclined to interfere with the adinterim order of injunction passed by the High Court Division because the parties have the scope to represent their respective cases before the Bench of the High Court Division where the proceeding is pending.

Bangladesh represented by the Secretary Ministry of Establishment Vs. Khondaker Tajuddin Ahmed and others. 3, MLR(1998) (AD) 283.

Article 102— Article 45—Writ jurisdiction in respect of disciplined forces— Remedy lies in departmental channel—

Service of member of the disciplined force depends on the pleasure of the President. Action taken by the President in respect of any member of the disciplined force for maintenance of discipline and proper discharge of duties is not amenable to the jurisdiction of the High Court Division under article 102. Article 45 clearly excludes such jurisdiction. Unless the order is corum non judice and is passed in gross violation of fundamental rights or malafide affecting terms and conditions of service, the remedy lies not in the court of law but in official and departmental channel.

Lieutenant General Abu Saleh Mohammad Nasim (Retd) Vs. Bangladesh. 3, MLR (1998) (HC) 10.

Article 102— Public interest litigation—

A new horizon has been opened in the Bangladesh jurisdiction with regard to public interest litigation. The former position of invoking the extra-ordinary jurisdiction of the High Court Division under article 102 by an aggrieved person has been substantially changed. Now a member of the public can well invoke the jurisdiction of the High Court Division against violation of fundamental right like right to life which includes the right to livelihood, health, education etc. The right to property cannot be taken away except with due process of law and without payment of just compensation. With a view to ensuring the rule of law, Government action is subject to judicial review and the court has to see that the Government action conforms the rules of procedure.

Dr. Mohiuddin Farooque and another Vs. Bangladesh represented by the Secretary, Ministry of Irrigation, Water Development and Flood Control and others. 3, MLR (1998) (HC) 33.

Article 102—Rate of mutation fee on the date of registration of deed to be followed—

Petitioner is entitled to pay fee for mutation in the record of the RAJUK at the rate prevailing on the date of registration of the transfer deed and not on the date of the agreement for sale.

M/S Imam Dockyard and Engineering Industries Ltd. Vs. Rqjdhani Unnayan Kartipakha & others. 3, MLR (1998) (HC) 93.

Article 102— Madrasha teacher under government management is entitled to show cause before dismissal—

Teacher of a Madrasha attached with Mosque taken under the Government management and control through the Administrator of Waqf cannot be dismissed by oral order. Such an oral order of dismissal without affording opportunity of showing any cause in defence being violative of natural justice is not sustainable in law and the incumbent is entitled to be reinstated in service with back salaries and allowances as admissible under rules by invoking writ jurisdiction of the High Court Division.

Quazi Md. Abdul Haleem Vs. Government of Bangladesh represented by the Secretary, Ministry of Religious Affairs and others. 3, MLR (1998) (HC) 105.

Article 102— Entitlement to absorption on abolition of post—

Government servants declared surplus on abolition of their posts are legally entitled to absorption in the other cadre service in equivalent posts as provided under section 5 of the Surplus Government Servants Absorption Ordinance 1985. The High Court Division can well direct the National Board of Revenue to absorb the petitioners as nominated by Government through the Ministry of Establishment in exercise of its writ jurisdiction.

Matiar Rahman (Md) and others Vs. Bangladesh represented by the Secretary, Ministry of Establishment and others. 3, MLR (1998) (HC) 107.

Article 102— Circular does not create any legal right—

Government circulars are mere guidelines and are of directory nature. Circular does not create any statutory right enforceable in law. Public interest takes precedence over individual interest. There is no violation of the principle of natural justice when the Government cancels the lease granted for limited purpose in terms of the lease agreement as and when the same land is required for public purpose.

Syeda Rajiqua Chowdhury Vs. The Secretary, Ministry of Communication and others. 3, MLR (1998) (HC) 160.

Article 102— Where remedy in tax matter is available under the law by way of appeal writ jurisdiction can not be invoked—

Any enactment or amendment of provision of law when does not offend any provision of the Constitution cannot be declared ultravires the Constitution.The Income Tax Ordinance is a special law. The remedy provided therein must be strictly followed. When under the enabling provision the authority exercised its discretion in Tax matter, such action can not be held to be without lawful authority, discriminatory or malafide. In such matter resort to the writ jurisdiction of the High Court Division is not permissible.

Dandy Dying Limited Vs. The Secretary Ministry of Finance and others. 3, MLR (1998) (HC) 217.

Article 102— Writ jurisdiction can not be invoked where appeal lies—

Where there is specific provision of appeal under the Customs Act itself application under article 102 of the Constitution is not maintainable pending such an appeal against the levy of customs duty.

Friends Corporation (M/S) Vs. The Commissioner of Customs and others. 3, MLR (1998) (HC) 281.

Article 102— Writ Jurisdiction of High Court Division where alternative remedy is available— but saddled with inflexible pre-condition— Such remedy is not efficacious—

Appeal lies to the District Judge against the dismissal of a Motwalli of a Waqf Estate under section 32 (2) of the Waqf Ordinance, 1962 but before filing appeal the aggrieved Motwalli is mandatorily required to handover charge of the office of the Motwalli. The pre-condition being inflexible such remedy is held to be not efficacious and as such an application under article 102 of the Constitution is maintainable.

Tafijul Huq Sarker Vs. Bangladesh and others. 4, MLR (1999) (AD) 19.

Article 102— Pensionery benefits cannot be extended by decree of court—

Extending the pensionary benefits is the legislative function of the Government and it does not fall within the ambit of the jurisdiction of the Court. Thus pensionary benefits cannot be extended by the decree of the Court.

Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladeshrepresentedbythe Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.

Article 102— Pension is not a bounty of the State-

Now pension being one of the terms and conditions of service is a legal and enforceable right. Pension is earned in lieu of services rendered and is an old age provision.

Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladesh represented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.

Article 102- Refixing pension in the light of price index- Moral consideration—

Claim for refixing pensions in the light of the money inflation and price rise in living index involves moral consideration which is not legally enforceable right. Unless extended by the Government through legislation the Court has no jurisdiction to interfere in such matter.

Bangladesh Retired Government Employees Welfare Association and others Vs. Bangladeshrepresented by the Secretary Ministry of Finance and others. 4, MLR (1999) (AD) 89.

Article 102(2)— Absence of legal right— Disentitles invocation of writ jurisdiction—

When the petitioners have no legal right to get permanent settlement of Government Khas land, they can notinvoke the writ jurisdiction of the High Court Division under article 102(2) of the Constitution.

Char Fashion Agriculture Complex Ltd. and others Vs. Bangladesh represented by the Secretary Ministry of Land and others. 4, MLR (1999) (AD) 174.

Article 102— Writ jurisdiction when can be invoked—

Question of disputed title and possession can not be decided in the writ jurisdiction. However extraordinary the High Court Division may have its jurisdiction in writ matters, such jurisdiction is ousted when question of disputed title and possession of the property in dispute is involved.

Shamsunnahar Salam (Mrs.) and others Vs. Md. Wahidur Rahman and others. 4, MLR (1999) (AD) 201.

Article 102 (2) — Not applicable to non-statutory body—

Application under article 102(2) of the Constitution against company which is not a statutory body is not maintainable.

Abdur Rahman (Md.) Vs. National Tea Company Ltd. & others. 4, MLR (1999) (AD) 347.

Article 102— No scope for reopening a finally settled issue—

Sitting of hat days depend upon convenience of local people. When the dispute between the two nearby hats was settled and was accepted by all concerned, subsequently the High Court Division in another writ Petition can not make observation for reopening the already settled issue which in the facts and circumstances is deleted.

Abdul Jalil (Mollah) and another Vs. Government of Bangladesh and others. 4, MLR (1999) (AD) 353.

Article 102- Disputed question of title and possession does not fall within the writ jurisdiction of High Court Division—

High Court Division cannot decide disputed question of title and possession of suit land in exercise of its writ jurisdiction. Observation made thereon by the High Court Division in exercise of writ jurisdiction shall not be taken into account by the civil court in the pending suit and also in any future litigation.

Government of Bangladesh represented by Secretary Ministry of Land Vs.M/s East West Property Development Put. Ltd. represented by its Director Md. Abu Sufian & others. 4, MLR (1999) (AD) 417.

Article 102— The Special Powers Act, 1974— Section 30— Provisions for appeal—

Where the alternative remedy is available under section 30 of the Special Powers Act, 1974 normally the writ jurisdiction under article 102 of the Constitution can not be invoked. But when in view of unusual circumstance the convict-appellant was deprived of his legal right of defence and the trial held beyond his knowledge and due to lack of knowledge he could not avail of the remedy under section 30 of the Special Powers Act, the extra-ordinary jurisdiction of the High Court Division under article 102 of the Constitution can well be invoked with a view to preventing the miscarriage of justice.

Mobarak Ali (Md) alias Mobarak All Mondal Vs. Bangladesh represented by Secretary Ministry of Home Affairs and others. 4, MLR (1999) (HC) 13.

Article 102— Remedy against breach of contract— Not available in writ jurisdiction—

Remedy against breach of contract lies in a regularly instituted suit in Civil Court. Application under article 102 of the Constitution for breach of contract is not maintainable in High Court Division.

Nuruddin (Md) Vs. Manager, Sales (C/B) and others. 4, MLR (1999) (HC) 33.

Article 102— Article 70— Duty of the Speaker to refer the dispute to Election Commission—

The Speaker is under the Constitutional obligation to refer to the Election Commission the dispute as to the cessation of the membership and vacating the seat under article 70(1) of the Constitution as required by article 66(4) and Rule 178 of the Rules of Procedure of Parliament, 1974 and when he fails to discharge this obligation the High Court Division can interfere under article 102 of the Constitution.

Khondakar Delwar Hossain Vs. Speaker, Jaliya Sangshad and another. 4, MLR (1999) (HC) 35.

Article 102— Writ petition does not lie in respect of Contractual dispute between private Companies—

A writ petition under article 102 of the Constitution is not maintainable when it involves dispute as to the amount of Gas bill and the dispute which arose out of contractual obligations between the two private companies.

Meghna Vegetable Oil Industries Ltd. Vs. Bangladesh Oil, Gas and Mineral Corporation (Petro Bangla) and others, 4, MLR (1999) (HC) 266.

Article 102- Writ Jurisdiction-Promissory estoppel—

Grant of lease of fisheries for three years for certain development scheme does not give any assurance of extension of the term of lease and as such there can be no question of promissory estoppel to lease out the said fisheries to other party. Bagbari Poshim.

Matshajibi Samity Ltd. Vs. Government of Bangladesh. 1, MLR (1996) (HC) 304.

Article 102 (2)— read with section 7 of P.O. 16 of 1972—Enlistment of abandoned property—

When the owner of certain property is a Bangladeshi national and never left the country, and was in possession thereof althrough, such property can not be enlisted in "Kha list" as abandoned property.

Syed Chand Sultana and others Vs. Government of Bangladesh. 1, MLR (1996) (HC) 310.

Article 102— Disputed question of fact can not be decided in writ jurisdiction—

A disputed question of fact requiring evidence to be decided does not fall within the ambit of writ jurisdiction of the High Court Division under article 102 of the Constitution.

Inland Fisheries Development Ltd. Vs. Bangladesh and others. 5 MLR (2000) (AD) 71.

Article 102— Writ jurisdiction in matters of disputes relating to the terms and conditions of service is ousted as contemplated by article 117—

Unless the vires of any law or rule is challenged on ground of constitutionality and enforcement of fundamental rights as enshrined in our Constitution is sought for, all the disputes relating to terms and conditions of service including promotion and seniority fall within the exclusivejurisdiction of the Administrative Tribunal as envisaged under article 117 of the Constitution.

Delwar Hossain Mia (Md.) and another Vs. Bangladesh represented by the Secretary Ministry of Home Affairs and others. 5 MLR (2000) (AD) 74.

Article 102- Preliminary inquiry in the nature of fact finding by an enquiry committee is not illegal- Such an action relates to the terms and conditions of service and as such writ jurisdiction is ousted—

There is nothing wrong in holding preliminary enquiry in the nature of fact finding before drawing up of departmental Proceedings by a committee of three members one of whom is of the lower rank of the person allegedly involved in the subject of inquiry. The dispute relates to the terms and conditions of service and as such does not come within the arnbit of writ jurisdiction.

Shamsul IslamKhan (Md) Vs. Secretary Ministry of Communications, Govt. of Bangladesh and others. 5 MLR (2000) (AD) 76.

Article 102— Withdrawal of writ petition by the petitioner cannot be refused—

It is the absolute right of the petitioner to proceed or not to proceed with his writ petition. When withdrawal of writ petition is sought by the petitioner, it cannot be refused as a matter of course. But when an enquiry as to certain point is pending under order of different Bench, granting of withdrawal by another Bench does not fall within judicial norms and propriety.

Novartis Foundation for Sustainable Development Vs. R.K. Ruma General Secretary BIKASH and others. 5 MLR (2000) (AD) 234.

Article 102— Writ jurisdiction-disputed question of facts—

Position of law is clear that disputed question of fact does not fall within the ambit of writ jurisdiction and as such a writ petition on such matter is not maintainable.

Shamsul Hoque Khan (Md). Vs. Ministry of Law, Justice and Parliamentary Affairs & others. 5 MLR (2000) (AD) 274.

The Rules of the High Court Division—Interference with decision of Division Bench by single Bench—

Interference with an order of regular Division Bench by a single vacation judge unless there is a compelling situation of utmost urgency, has been deprecated usually as improper, inexpedient and overbearing with disrespect of propriety. Although a single vacation Judge does not lack in jurisdiction, he is meant to deal with urgent matters only arising during vacation and as such in extreme circumstances, such discretion can be exercised most sparingly.

Azizur Rahman (Md) Vs. Government of Bangladesh represented by the Secretary, Ministry of Housing and Public Works and others. 2, MLR (1997) (AD) 233.

Article 103(3)—Missing point requiring consideration of evidence can not be agitated before Appellate Division—

When not agitated earlier before the trial eoi'rt, appellate court and even before the revisional Court, no such missing point which involves consideration of evidence afresh can be raised before the Appellate Division for the first time.

Narayan Chandra Das and others Vs. Abdul Jobbar Dewan and others. 4, MLR (1999) (AD) 349.

Article 103—Interference except for non-consideration— By High Court Division—

Findings of fact arrived at by the trial court and affirmed by the lower appellate court in appeal as well as by the High Court Division in revision on proper appreciation of evidence on record cannot be interfered with by the Appellate Division unless there is any case of non-consideration or misreading of any material evidence occasioning failure of justice.

Basir Ahmed Vs. Abdul Barek Mia. 2, MLR (1997) (AD) 349.

Article 104—Doing complete justice and prevent abuse of the process—

Usually the Appellate Division is reluctant to interfere with the concurrent finding of fact of the courts below. But where in any judicial proceeding fraud has been practised it is under the dictate of judicial conscience, the Appellate Division comes up to interfere to prevent the abuse of the process of law and to do complete justice.

Government of Bangladesh and another Vs. Mashiur Rahman and others. 2, MLR (1997) (AD) 316.

Article 104— Doing complete justice—

The Appellate Division only has been bestowed with the jurisdiction of doing complete justice in any matter pending before it under Article 104 of the Constitution.

Secretary Internal Resources Division Ministry of Finance Vs. Nasrin Banu and others. 1, MLR (1996) (AD) 39.

Article 105— Review— (Order 47 rule 1 of the Code of Civil Procedure)— Review of judgment—

Review of judgment or order can only be made on the ground of error apparent on the face of the record. No review can be allowed for affording opportunity of rehearing on points not urged earlier by a party.

Zobaida Naher & Jharna Vs. Mst. Khairannessa being dead her heirs Md. Feroz Alam and others. 2, MLR(1997) (AD) 415.

Article 105— Review of judgement by Appellate Division—

When the judgment of the High Court Division was modified on the party's counsel conceding to the fact of forgoing the claim of seniority in respect of certain Batch by filing petitions to the relevant authority, subsequent unilateral withdrawal of the said petitions does not render any ground for review of the judgment.

Matiur Rahman and others Vs. Bangladesh and others. 4, MLR (1999) (AD) 197.

Article 105— Review of judgment by the Appellate Division—

Unless material new fact is discovered having direct bearing on the decision of the Appellate Division no review is warranted.

Golam Rahman Mallik Vs. Government of Bangladesh. 4, MLR (1999) (AD) 352.

Article 106—Satisfaction of the President justifies a reference to the Supreme Court under article 106—

The satisfaction of the President that a question of law has arisen or is likely toarise and that it is of public importance and that it is expedient to obtain opinion of the Supreme Court justifies a Reference.

Special Reference No. 1 of 1995— 1, MLR (1996) (AD) 8.

Motive not material

The Supreme Court cannot go into examining the expediency or motive, political or otherwise while answering the reference.

Special Reference No 1 of 1995 — 1, MLR (1996) (AD) 8.

Opinion not judgement—

The opinion of the Supreme Court is not a judgment and it has no binding effect.

Special Reference No. 1 of 1995— 1, MLR (1996) (AD)12

Supreme Court is ultimate arbiter

The Supreme Court is the ultimate arbiter in deciding whether it is appropriate in a particular case to take upon itself to pronounce its opinion on an issue which may be dubbed as a political question.

Special Reference No. 1 of 1995—1, MLR (1996) (AD) 10.

Boycott aims at forcing settlement of dispute—

A boycott is refusal to have contact or a deliberate breaking of relationship to force settlement of dispute.

Special Reference No. 1 of 1995— 1, MLR (1996) (AD)16.

Democratic culture—

Democratic norms is a trust reposed upon all sections of the Parliament which is called democratic culture required to be practised by all in the business of politics.

Special Reference No. 1 of 1995. 1, MLR (1996) (AD) 20.

Article 115— Judicial Officer's terms and conditions of service to be governed by separate Rules and Law— Rule making power—Article 116A— Independence of judicial officers in exercise of their duties—

While administering justice, the judicial officers are independent and in view of the nature of their job they cannot be equated and tagged with other services of the Republic as contemplated under article 116A of the Constitution.Article 115 provides for making rules for governing the terms and Conditions of the service of judicial officers and accordingly the President is urged upon to make necessary rules for the judicial officers constituting distinctly a separate service under the title "Bangladesh Judicial Service" and also to constitute Judicial Service Commission for recommending their pay, grade and allowances.

Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.

Article USA-Independence of Judiciary— Financial Independence of the Supreme Court— Budgetary provision to be made on requirement of the Supreme Court—

In order to secure the independence of the Supreme Court it should be given financial independence also without which its independence will not be complete and meaningful. The appellant is directed to make budgetary provision as per the requirement of the Supreme Court independent of interference from any other ministries.

Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.

Article 116— Consultation with the Supreme Court—

The President is under the Constitutional obligation to consult the Supreme Court while appointing, posting, promoting etc. the judicial officers and magistrates exercising judicial functions under article 116 of the Constitution. When not consulted with the Supreme Court the mandatory constitutional provision is violated rendering the action so taken, illegal and viod. Any citizen can maintain a writ quo warranto against violation of the Constitution.

Government of Bangladesh represented by Secretary Ministry of Establishment Vs. Md. Idrisw Rahman, Advocate & others— 4, MLR (1999) (AD) 225.

Article 119(2)—Powers of the Election Commission to conduct elections—The Union Parishad Ordinance, 1983— (No.51 of 1983) Section 24-Power to direct- repelling—The Union Parishad Election Rules 1983—

Under article 119(2) of the Constitution the Election Commission is vested with full power of superintendence and control for holding elections fairly in accordance with law. On ground of palpable rigging in the election the Election Commission can well direct repelling on setting aside the election even though the Presiding officer and Returning Officer do not submit report as to any disturbance in the election.

Abdul Quader Farazi Vs. Chief Election Commissioner and others. 4, MLR (1999) (HC) 67.

Article 102— Locus stand! in writ quo warranto— Article 116— Consultation with the Supreme Court—

Under Article 116 of the Constitution the President is mantatorily required to consult the Supreme Court while appointing, posting, transferring, promoting, taking disciplinary action in respect of judicial officers and magistrates exercising judicial functions. Chief Metropolitan Magistrate exercises judicial functions and as such falls under article 116 of the Constitution. When not consulted with the Supreme Court, such appointment is illegal and violative of the Constitution. Any conscious citizen can maintain a writ quo warranto against constitutional violation.

Idrisur Rahman (Md) Vs. Shahiduddin Ahmed and others. 4, MLR (1999) (HC) 199.

Article 117—Judicial officers are amenable to jurisdiction of Administrative Tribunals—

Administrative Tribunals are creation of the Constitution. For deciding any dispute arising out of the terms and conditions of their service, the judicial officers shall be amenable to the jurisdiction of the Administrative Tribunals.

Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others, 5 MLR (2000) (AD) 89.

Article 133—Rule making power of the President— Judicial Officers cannot be at par with other officers—

The President can not make rules under article 133 of the Constitution for the judicial officers treating them at par with other services.

Secretary, Ministry of Finance, Govt. of Bangladesh Vs. Md. Masdar Hossain and others. 5 MLR (2000) (AD) 89.

Article 134— Holding office during pleasure of the President—Navy Rules, 1961— Rule 14(5)— Inquiry reports— Action taken thereon—

Every person in the service of the Republic holds his office during the pleasure of the President. Unless it is malafide the exercise of the pleasure of the President is not subject to judicial review. So long not made public, the reports of the Court of Inquiry or Inquiry Commission are confidential documents of the State. Review of the judgment is not permissible in law without discovery of new facts materially affecting the decision.

Rear Admiral A.A. Mustafa Vs. Bangladesh represented by the Secretary Ministry of Defence. 4 MLR (1999) (AD) 238.

Article 134— Chief of Army Staffs holds office during the pleasure of the President —Army Rules and Regulations are not amenable to judicial review under article 102—

The post of the Chief of Army Staffs is a position of trust and confidence and as such the Chief of Army Staffs holds office during the absolute pleasure of the President as contemplated by article 134 of the Constitution.

Major General Moinul Hossain Chowdhury Vs. Government of Bangladesh & others. 4, MLR (1999) (AD) 389.

Article 152(1)— Judicial service defined—Article 135— Constitutional protection is available to judicial officers—

Judicial service has been defined under article 152(1) of the Constitution as a distinct and separate service which can not be treated as equal with other services of the Republic. Treating judicial officers equal with other service of the Republic is opposed to and violative of the constitutional scheme. Though the judicial officers form a separate and distinct service as designed under the Constitution, they are, in a generic sense, in the service of the Republic, and as such are entitled to the constitutional protection under article 135.

Secretary, Ministry of Finance, Gout, of Bangladesh Vs. Md. Masdar Hossatn arid others. 5 MLR (2000) (AD) 89.

Article 14Q-President not bound to consult P.S.C. in all matters—Effect of non-consultation—

The President is not bound to consult the Public Service Commission in all matters relating to the terms and conditions of the service of the Republic. Non-consultation does not render any decision invalid.

Bangladesh represented by the Secretary Ministry of Establishment Vs. Shafiuddin Ahmed &, others. 2, MLR(1997) (AD) 257.

Article 142— Indemnity (Repeal) Act 1996—Procedureforamendmentofthe provision of the Constitution— Indemnity Ordinance, 1975— Whether became part of the Constitution by reason of its inclusion in theparagraph3Aand 18of the Fourth Schedule requiring its amendmentthrough the procedure under article 142 of the Constitution. Indemnity (Repeal) Act 1996— Whether a valid piece of legislation—

Since the Constitution remained suspended during the Martial Law Regimethe inclusion of all the Martial Law Regulations, Orders, Ordinance etc. in the Fourth Schedule of the Constitution after their ratification by the Parliament on the lifting of the Martial Law was for the purpose of maintaining continuity of the constitutional process. By reason of such inclusion the Indemnity Ordinance 1975 was never made part of the Constitution and as such this Ordinance could well be amended by the Parliament by simple majority just like ordinary legislation in which case article 142 of the Constitution is not applicable. Thus the Indemnity (Repeal) Act, 1996 is perfectly a valid law.

Shahriar Rashid Khan and another Vs. Bangladesh and others. 3, MLR (1998) (AD) 233.

Indemnity Repeal Act, 1996 (Act. No.21 of 1996—Whether ultravirestheConstitution—Article 142—

Indemnity Ordinance, 1975— Paragraph 3A and 18 of the 4th Schedule of the Constitution— Inclusion in the schedule does not form part of the Constitution—

An Ordinance though protected by way of inclusion in the schedule of the Constitution does not form part of the Constitution. The Indemnity Ordinance, 1975 (Ord 50 of 1975) as such not being part of the Constitution does not require two third majority members of the Parliament for its repeal as contemplated by article 142 of the Constitution.When Constitution provides equality of every citizen before law, the Indemnity Ordinance 1975 was violative of the basic principle and fundamental rights guaranteed under the Constitution and as such the Indemnity Ordinance, 1975, being a simple legislation has been rightly and validly repealed by the Indemnity (Repeal) Act 1996 (Act No 21 of 1996) by simple majority members of the Parliament. The Indemnity (Repeal) Act, 1996 being a valid legislation is not ultra vires the Constitution and as such is not liable to be struck down.

Shahriar Rashid Khan and Mrs. Mahmuda Rahman Vs. Bangladesh represented by the Secretary, Ministry of Law and others. 2, MLR(1997) (HC) 25.

Articles 2(a),55, 142(2) and 143(2)—Treaty involving cession of territory of Bangladesh. (Delhi Treaty effected on 16th May 1974)— Constitutional requirement—

Though treaty-making powers of the Government fall within the ambit of the executive power under article 55(2) of the Constitution, a treaty involving determination of boundary and more so involving cession of territory can only be concluded with the concurrence of Parliament by necessary enactment i.e. in case of determination of boundary by an enactment under article 143(2) and in case of cession of territory by amending article 2(a) of the Constitution by a recourse under article 142.

Kazi Mukhlesur Rahman Vs. Bangladesh. 26 DLR (SC) (1974) 45.

Article 31 and 32— Right to protection of law, life and liberty—

According to article 31 of the Constitution, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to life, liberty, body, reputation or property of a personshall be taken except in accordance with law. Like-wise article 32 provides that no person shall be deprived of life or personal liberty save in accordance with law.

Abdul Latif Mtrza Vs. Government of Bangladesh. (1979) 31 DLR (AD) 6.

Article 35— Prohibition against conviction not provided by law at the relevant time—

Article 35 contains constitutional prohibition to the effect that "no person shall be convicted of any offence except for violation of a law in force at the time of commission of the act charged as an offence.

Mafizur Rahman Vs. Government of Bangladesh. 34 DLR (1982) (AD) 321.

Article 47(2)— Protected laws— Shall Prevail despite repugnancy—

Clause (2) of article 47 of the Constitution provides in clear language with a non-obstinate clause that inspite of what has been contained in the Constitution, the protected laws shall have validity and their vires could not be challenged on the ground of inconsistency with or repugnancy to any provision of the Constitution.As provided under clause (2) of article 47 two kinds of protection are there— first is the legislative protection to the laws specified in the First Schedule and the second is the action taken under those protected laws.Government of Bangladesh Service Screening Order 1972 (P.O. No 67 of 1972) since protected under article 47(2) notwithstanding any inconsistency shall prevail.

Kazi Mokarram Hossain Vs. Secretary, Ministry of Cabinet Affairs. 31 DLR (AD) 64.

Article 48 read with article 55— Act done by a Minister is an act of the Government—

The President is the constitutional head and the Prime Minister heads the Cabinet as the executive head and forms the Government of Bangladesh and as such the executive authority of the State vests in the Cabinet or the Council of ministers.Particular function done by a Minister as prescribed by the Rules of Business is a function done under the authority of the Government.

Government of the People's Republic of Bangladesh Vs. Md.Habibur Rahman. 31 DLR (AD) 152.

Article 102— Extra-ordinary jurisdiction of High Court Division— Coram non-judice—

If the Martial Law Court or Tribunal acts without jurisdiction or is not properly constituted or acted malafide, the High Court Division under article 102 may interfere with such acts.

Khondaker Ehteshamuddin Ahmed Vs. Bangladesh. 33 DLR (AD) 155.

Article 102— When alternative remedy is available writ jurisdiction can not be invoked—

Remedy by way of invoking extraordinary wilt jurisdiction must be sought without inordinate delay.Availability of alternative remedy is a part of the positive law of the country and where such an alternative remedy is available the extraordinary remedy by invoking writ of certiorari can not be granted.

Shafique Rahman Vs. Certificate Officer. (1977) 29 DLR (SC) 232.

Article 102— Local Authorty— PublicCorporation-violationofnatural justice—

BSI Corporation being a local authority falls within the category of persons performing function in relation to the affairs of the Republic. The High Court acting under article 102 may make an order against a Public corporation when it dismisses an employee of a public corporation in violation of statutory rules and in breach of the principles of natural justice. Principle of natural justice evisages that no one should be condemned unheard and without affording an opportunity of defence.

BSI Corporation Vs. Mahbub Hossain. 29 DLR (SC) 43.

Article 102—Interference with decision of Court-Martial on ground of coram non-judice—

High Court Division has no jurisdiction to interfere with decision of Court Martial unless it is affected by coram non-judice.

Jamil Huque Vs. Bangladesh. 34 DLR (AD)125.

Article 102— Enforcement of judgment of writ petition—Remedy in contempt proceeding—

When judgment in a writ petition has been pronounced by the High Court Division there remains nothing pending before it. The authority concerned has to enforce the direction of the judgment. In the event of failure of the authority to carry out the court's order, the remedy lies in the contempt proceedings. Question of abatement does not arise as there remains no proceeding pending before the court after pronouncement of judgment.

Bangladesh Vs. Md. Salimullah. (1983) 35 DLR (AD) 1.

Article 102— Scope of writ jurisdiction— High Court Division can not sit as court of appeal in writ proceedings—

The jurisdiction of the High Court Division in the nature of certiorari is not so wide or large as to enable it to convert itself into a court of appeal.

AyeshaSalahuddin- Vs. Chairman. (1980) 32 DLR (AD) 68.

Article 102— BCSIR being a local authority is amenable to writ jurisdiction—

Bangladesh Council of Scientific and Industrial Research Laboratories is a local authority" within the meaning of the expression as defined in the General Clauses Act and as such an application under article 102 of the Constitution is maintainable.

A.Z. Rafique Ahmed Vs. BCSIR. 32 DLR (AD) 83.

Article 102 (3) (b) (C) — Detention to be struck down when made without lawful authority or in unlawful manner—

The two expressions "without lawful authority" and "in an unlawful manner" are to be interpreted keeping in view the satisfaction of the court as to whether the action is in accordance with law. Law has to be understood in its general connotation to include authoritative judicial principle laid down by the superior courts. To say with comprehensiveness and clarity the phrase embodies the cardinal principle of "due process" as in the American Constitution. Considered in this sense an action which is malafide, colourable exercise of statutory power, or taken upon extraneous or irrelevant considerations and actions taken upon no ground orwithout application of mind of the detaining authority are actions which do not qualify as actions in accordance with law should be struck down as an action taken in an unlawful manner.

Abdul Latif Mirza Vs.Government of Bangladesh. 31 DLR (AD) 1.

Article 102(5)— Disciplined force-Not amenable to writ jurisdiction—

Court or tribunal set up to deal with any matter relating to disciplined force are not amenable to the jurisdiction of the High Court Division under article 102 of the Constitution. Inspector of Police is and must be held to be a member of disciplined force within the meaning of the definition given in clause (5) of article 102 of the Constitution.A member of the disciplined force cannot invoke writ jurisdiction for redress of his grievance. To extend such a privilege would undermine the discipline of the defence service.

Bangladesh Vs. Md. Abdur Rab. 33 DLR (AD) 143.

Article 107(3)— Constitution of the Bench of High Court Division— Validity of action done by judge not as properly constituted Bench—

After the Bench is dissolved by order of the Chief Justice under the provision of article 107(3) of the Constitution it can not work. If the said Bench continues to work ignoring the order of the Chief Justice it acts wholly without jurisdiction.

Moazzam Hossain Vs. The State. 35 DLR (AD) 290.

Article 109— Court Martial not amenable to jurisdiction of High Court Division—

Court Martial set up under the Army Act is not subordinate to the jurisdiction of the High Court Division as contemplated in article 109 of the Constitution.

Jamil Huq Vs. Bangladesh. 34 DLR (AD) 125.

Article 133— Military service— Whether service of the Republic—

Though the Military Service comes within the service of the Republic but so far article 133 of the Constitution is concerned, the appointments and conditions of service in the Military-capacity are to be regulated by separate laws made by the Parliament.

Bangladesh Vs. Md. Abdur Rab. 33 DLR (AD) 145.

Article 134 and 135— Pleasure doctrine of the President— Not unfettered—

The expression pleasure of the President is not absolute and unlettered power but is subject to the provisions of article 135 of the Constitution. The order of termination of service made without complying with the requirements of article 135 must be knocked down as illegal and void.

Dr. Nurul Islam Vs. Bangladesh. 33 DLR (AD) 201, 204.

Article 134 and 135— Combined effect of— Constitutional protection in service matters—

A combined reading of article 134 and 135 of the Constitution reveals that a person in the service of the Republic holds his office during the pleasure of the President. But when he holds a post in civil capacity the pleasure doctrine is circumscribed by two conditions— one as to the authority to take action and the other procedure by which the action is to be taken. This constitutional guarantee is that no person in civil employment shall be dismissed, removed or reduced to a lower rank by an authority subordinate to that by which he was appointed and no such action shall be taken unless he has been given a reasonable opportunity of showing cause as to why that action should no be taken.

Bangladesh Vs. Dhirendra Nath Sarker. 34 DLR (AD) 173.

Article 102—Military services— Police sevice— Whether belong to the category of Defence Service—

Military Services such as army, navy and airforce belong to the Defence Services in the category of disciplined force. Police service belonging to the category "b" of the disciplined force do not belong to defence service and as such they hold posts in civil capacity. In that view of the matter a police officer dismissed from service can seek his remedy in the High Court Division under article 102 of the Constitution.

Bangladesh Vs. A.K.M. Jahangtr Hossain. (1982) 34 DLR (AD) 173.

Article 135— Compulsory retirement has the same effect as dismissal— Second show cause notice necessary—

Though article 135(2) of the Constitution does not speak of compulsory retirement from service, the effect is same as of dismissal or removal if a person is compulsorily retired from service by way of punishment and as such it amounts to removal or dismissal.The expression "proposed action" means action proposed to be taken on the provisional finding of guilt arrived at and prior to that stage the proposed action is mere hypothetical. Therefore, as contemplated by article 135 second show cause notice should be given to a person against whom a major penalty is proposed even though the Government Servants (Discipline and Appeal) Rules do not provide for the second show cause notice as to why the proposed punishment should not be awarded to him.

Fazlul Huq Chowdhury Vs. Government of Bangladesh. (1978) 30 DLR (HC) 144.

Article 102—Appeal against judgment after expiry of statutory period when couched in negative term— Mandatory—

The second proviso to the 7th paragraph of the Fourth Schedule has been couched in a negative and prohibitory form. In such a case the cardinal rule of construction is that where statutory restriction are couched in negative term they are almost invariably held to be mandatory.

Osman Gani Vs. Moinuddin Ahmed. (1975) 27 DLR (AD) 61.

Article 100— Rule of Law—

To secure the rule of law for all citizens being one of the fundamental aims of our society is the pole star of the Constitution of Bangladesh for the furtherance of which the provision of judiciary have been incorporated therein.Article 7 is the statute of liberty, supremacy of law and rule of law. The preamble and article 7 of the Constitution can not be amended without referendum. King is not above law but under the law. The unitary character of the Supreme Court under the constitutional scheme can not be destroyed. Thus the 8th Amendment relating to article 100 is struck down accordingly. The basic features of the Constitution cannot be altered. Article 7 provides that any law inconsistent with the Constitution shall be void to the extent of the inconsistency. The judiciary is to consider the validity or otherwise of the law and declare it void if it is in conflict with article 7.

Anwar Hossain Chowdhury Vs. Bangladesh. 41 DLR (AD) 165.

Fundamental principles of State policy— Not enforceable—

Fundamental principles of state policy being guidelines are not justiciable in court.

Sheikh Abdus Sabur Vs. Returning Officer. 941 DLR (AD) 30.

Article 35- Protection against trial and punishment—

Protection in respect of trial and punishment for more than once for the same offence as referred to in article 35 is applicable to criminal prosecution only.

Md. Serajul Islam Vs. Director General of Food. 42 DLR (AD) 199.

Article 102—Writjurisdiction can not be invoked in Election matters—

Writ jurisdiction can not be invoked where alternative remedy is available by way of Election petition before the tribunal.

Zaker Hossain Vs. Abdur Rahim. 42 DLR (AD) 153.

Article 102- Writ against departmental proceedings against a GovernmentServant—Notpermissible—

Writ jurisdiction can not be invoked for challenging departmental proceedings of a Government Servant.

Md. Serqjul Islam Vs. The Director General of Food. 42 DLR (AD) 199.

Alternative remedy when not bar to writ—

When purely a question of law or interpretation of satute is raised, availability of alternative remedy by way of appeal or revision is no bar to invoke writ jurisdiction .

MA. Hat Vs.T.C.B.40 DLR (AD) 206.

Basic features of Constitution changed not to be challenged after long time—

Though the Fourth Amendmen altered and destroyed the basic and essential feature of the Constitution, the same has not been declared invalid because of lapse of time and change of political scenario in consequence of the change of government.

Hamidul Huq Chowdhury Vs. Bangladesh. 34 DLR (HC) 381.

Principles of State Policy— Not enforceable in law—

There is clear distinction between enforceability of the principles of State policy and interpretation of laws in conformity with those principles. A lav/ cannot be struck down for inconsistency with any of the principles of state policy. The principles of state policy are guidelines and are not enforceable in court of law.There is no scope for forming a local government body outside the ambit of article 59 or composed of non-elected persons.

Kudrat-E-Elahi Vs. Bangladesh. 44 DLR (AD) 319.

Supreme Court loses its constitutional superior position on Proclamation of Martial Law—

The moment the country is put under Martial Law, the constitutional jurisdiction of the Supreme Court along with other civil laws of the country loses its superior position.

State Vs.Joynal Abedin. 32 DLR (AD) 110, 123.

Martial Law does not leave behind any shadow on criminal offences—

The ordinary laws of the country cannot ever contemplate or visualise extra-constitutional offences tried by extra constitutional courts or tribunals in an extra-constitutional dispensation. Nor is there any constitutional mandate to read Martial Law offences and Martial Law courts whenever there is any reference to criminal offences and conviction in any general law of the land. It is well settled that Martial Law is not a part of constitutional scheme of this country. It is a temporary measure, a short term arrangement. It meets only an interim need. When it leaves, it usually legalises all past actions for purposes of immunity,withthetacitacknowledgment that its interference with the constitutional process is an aberration and needs to be condoned. But while leaving Martial Law does not leave any trail of disqualification. It is good as long as it lasts, but with its departure it no longer casts a shadow upon the ordinary laws of the land.

Monoranjan Mukherjee Vs. Election Commission. 41 DLR (HC) 484.

Ratification of actions done on the lifting of Martial Law-

Martial Law goes but its actions are ratified and the remnants of Martial Law are grafted into the constitutional system. Therefore, the Proclamation of Martial Law, Martial Law offences and Martial Law Courts die a natural death when the Martial Law is revoked but its legacies and fall outs continue to the extent and in the manner expressly provided by the saving clauses repealing the Martial Law Regulations and Orders.Nasrin Kader Siddiqui Vs. Bangladesh.

44 DLR (AD) 16 (Para 71, 72).

Review of Martial Law Orders by Government—

As provided under section 6 of the General Clauses Act the power of review of Martial Law orders continues with the Government after the lifting of the Martial Law.

Bangladesh Vs. Mahbubur Rashid. 1981 ELD (AD) 300.Principal Secretary, President's Secretariat Vs. Mahtabuddin. 42 DLR (AD) 214.

Doctrine of "Due process"—

Law here is not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior courts. It means according to the accepted forms of legal process and postulates a strict performance of all thefunctions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American 'due process' clause in a new garb".

West Pakistan Vs. Begum Shorish Kashmiri. 21 DLR (SC) 1. (12)Abdul Latif Mirza Vs. Bangladesh. 31 DLR (AD) 1, (21).

Article 59- Local Government-Effect of abolition—

The Government or for that matter, any person or body, not elected in the area according to law, cannot upon abolition of a local government institution of that tier, take over the authority, powers, functions and privileges of a local government institution of that tier even for a temporary period or as stop-gap-arrangement.These bodies made great contribution to the country's democracy, which is now a basic structure of the Constitution with the revival of the constitutional backing for "Local Government", these old institutions cannot be abolished without damaging the democratic fabric of the country.

Kudrat-E-Elahi Vs. Bangladesh. 44 DLR (AD) 319, 329, 346.

Article 99— Prohibition on holding office of profit in the service of the Republic by a Supreme Court Judge—

The purpose behind this prohibition was that the high position and dignity of a Judge of the Supreme Court should be preserved and respected even after his retirement and, further that if any provision was made for holding of office, after retirement, then a Judge, while in the service of the Supreme Court might be tempted to be influenced in his decisions in favour of the authorities keeping an eye upon a future appointment.

Abdul Bari Sarker Vs. Bangladesh. 46 DLR (AD) 37, 38.

Article 104-Doing complete justice—

Considering the vagaries of legal proceedings and the technicalities involved in adjudication, article 104 of the Constitution has invested as a measure of abundant caution, the last court of the country with wide power, so that it may forestall a failure of justice and to do complete justice in an appropriate case. It is an extra ordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before the court. If a substantial justice under law and on disputed facts can be made so that parties may not be pushed to further litigation then a recourse to the provision of article 104 may be justified. Complete justice may not be perfect justice and any endeavour to attain the latter will be an act of vanity. Husband constructing house on land of his wife is permitted to live in one floor and the wife retaining her possession in the rest of the building and to recover possession subject to the payment of taka 6 lacs being the price of construction.

Naziruddin Vs. Hameda Barm. 45 DLR (AD) 38. 44.

Suo-motu Review of its ownjudgment or order by the SupremeCourt

Appellate Division can suomotu reviewits judgment or order.

Mohbubur Rahman Sikder Vs. MujibarRahman Sikder, 37 DLR (AD) 145.

Apology—In contempt case—

Apology is an act of contrition. If tendered it may not be necessarily accepted and the contemner purged of his contempt. When a contemner tenders apology as an act of contrition the court must weigh that apology tendered by the contemner. If the apology is found to be a real act of contrition, no action need be taken and a word of warning may be enough but if the apology is qualified, hesitant and sought to be used as a device to escape the consequence of the contemner's action it must be rejected.

Shamsur Rahman Vs. Tahera Nargis 44, DLR (AD) 237.

Contempt of Court— Power to punish contempt—

The Supreme Court has been invested with power to punish the contempt of court not for the protection of the individual judges from imputations, but for the protection of the public themselves from the mischief they will incur if the authority of the Supreme Court is impaired.

Moazzem Hossain Vs. The State. 35 DLR (AD) 290.

Interference with administration of justice constitutes contempt—

When one Upazila Nirbahi Officer sat by the side of a Munsif-Magistrate in the Court room and told the Munsif in the presence of the advocates and the litigant public as to how to conduct criminal cases, this unwarranted and unprecedented interference with the administration of justice constituted contempt of court and was punished by the High Court Division which was affirmed by the Appellate Division of the Supreme Court.

State Vs. Abdul Karim Sarker. 37 DLR (HC) 26Abdul Karim Sarker Vs. the State. 38 DLR (AD) 188.

Election to Women Reserve Seats— Article 121 of the Constitution—

The indirect election of the Women Members of the Parliament against reserved seats was challenged on the ground of being undemocratic and violative of the article 121 and article 28 of the Constitution, the Appellate Division of the Supreme Court rejected the contention.

Dr. Ahmed Hossain Vs. Bangladesh 44 DLR (AD) 109.

Coram Non-judice— Malice in Law—

Election Commission is to ensure free and fair elections. The inherent power of the court should be exercised sparingly in relation to the election matters and only on the ground of corarn nonjudice or malice in law.This power is to be exercised with utmost restraint, for frequent use of it is likely to render other statutory functionaries ineffective. It is rather difficult to draw a line of demarcation of the field where this should be exercised and where should not. But from the experience it is found that sometimes statutory functionaries on the spot do not make timely report as to any disturbance during poll or large scale rigging at the time of counting of ballot papers either through coercion or from dishonest motive. So the general rule that where the election has been held peacefully and no report has been made about any disturbance or rigging by the Presiding officer or the Returning Officer, then the Election Commission has no power to interfere, can not be taken for universal application.

Altaf Hosain Vs, Abul Kashem, 45 DLR (AD) 53. Shah Alam Vs, Mujibul Huq, 41 DLR (AD) 68. Zaker Hossain Vs, Abdur Rahim, 42 DLR (AD) 153.

Service of the Republic—Article 152— Service of Statutory Corporation not included—

The Services of the Republic as defined under article 152 of the Constitution do not include any service under any statutory corporation and the provisions of Part IX of the Constitution are not applicable to such service. The fact that certain service benefit enjoyed by the government servants have been made available to some Bank employees does not confer upon them the status of government servants.

Sheikh Abdur Rashid Vs. Bangladesh, 29 DLR (HC) 362, Bangladesh Vs. MD. Alauddin, 38 DLR (AD) 81.

Article 52(1)—Immunity of President from criminal prosecution while in office—

As provided in article 52(1) of the Constitution of the People's Republic of Bangladesh, immunity of the President from criminal prosecution is available only when he is in office and not thereafter.

Hussain Mohammad Ershad Vs. The State. 11 BLD (AD) 55.

Article 65—Power of the Parliamentto validate invalid law and the constitutional provision—Prospectivelyorretrospectively—

Parliament is the supreme legislative authority subject to the constitutional limitations. Unless prohibited by the Constitution it can pass any law on any subject either prospectively or retrospectively. Similarly it can also validate any invalid law within the constitutional vires either prospectively or retrospectively.

Mofizur Rahman Khan Vs. Government of Bangladesh. 2 BLD (AD) 120.

Constitution of Bangladesh 1972

Citation: 4, MLR (1999) (AD) 316

Case Year: 1972

Subject: Constitution of Bangladesh

Delivery Date: 2018-04-25

Constitution of Bangladesh 1972

Article 102- Scope of interference in service matters—Article 29- Equality of opportunity of employment—

Mere preparation of list of some persons for appointment to certain posts does not create any vested right enforceable in law. But when on the basis of certain statutory backing and Government decision, list is prepared of certain persons for appointment/absorption to certain posts and some of them are appointed and some are left out, the left out writ petitioners in the circumstances can certainly invoke the writ jurisdiction for intervention on ground of discrimination.

Government of Bangladesh represented by Secretary Ministry of Establishment, and others Vs. Md. Jahangir Hossain and others 4, MLR (1999) (AD) 316.

Court Fees Act, 1870

Citation: 1, MLR (1996) (HC) 67, 1 BLD (AD) 311, 7 BLD (AD) 269, 39 DLR (AD) 207, (1911) 13 DLR (SC) 19, (1985) 35 DLR 11, 39 DLR (AD) 46, 12 BLD (HC) 353, 2 BLD (PIC) 201, 8 BLD (HCD) 60, 20 DLR (HC) 599, 19 DLR (SC) 1, 13 DLR (HC) 836, 19 DLR (HC) 221, 12 DLR (H

Case Year: 1870

Subject: Court Fees Ac

Delivery Date: 2018-04-09

Court Fees Act, 1870

(Act No.VII of 1870)

Section 7 (IV) (C)- Advalorem court fee—

In a suit for declaration of title and partition as consequential relief advalorem court fee under section 7(IV)(C) is payable. Lower Appellate Courts' decision reversing the findings of trial court without considering evidence on record is erroneous and liable to be set aside.

Mahmudul Hoque & others Vs. Nowab Ali Chowdhury & others. 1, MLR (1996) (HC) 67.

Ouster of a minor from the possession— Limitation— Partition suit— without declaration of title— Maintainability—

A minor ousted from possession can file a suit for partition and recovery of possession within three years of attaining majority even if it occurs after twelve years of dispossession. Advalorem court fee is payable in such a suit. Article 144 of the Limitation Act, 1908 is applicable.

Sanjib Kumar Base and another Vs. Syed Shamsuddin and another. 1 BLD (AD) 311.

Section 35A— and Schedule 1 — Levy of court fees— Advalorem basis— Advalorem court fees payable on valuation of suit, appeal and application— Reduction by 15% and increase by 15% explained—

Section 35A is very much there in the statute and its provisions are not inconsistent with the schedule 1 as substituted in 1981. It must be acted upon unless it is found that it has been repealed by necessary implication. But it is a settled law that the court shall presume against repeal of a statute by necessary implication. If section 35A is read along with all the relevant schedules starting from 1960 till 1981 it will be clear that the intention of the legislature was to superimpose the provision of section 35A upon the amounts of advalorem court fee as shown in the schedule which may be amended from time to time. Substitution of one law for another clearly amounts to repeal followed by re-enactment. Section 35A will run along with the schedule as re-enacted unless any different provision is expressly made in the statute.

Sonali Bank, Local Office, Dhaka Vs. Gazi Abdur Rashid and others. 7 BLD (AD) 269, 39 DLR (AD) 207.

Section 6A— Valuation in Partition suit—

For the purpose of court's jurisdiction the valuation of a partition suit where the plaintiff is in possession will be the same as the value of the plaintiffs share in the entire property.

Ajiruddin Vs. Rahman Fakir. (1911) 13 DLR (SC) 19.

Section 7-VI(a) partition suit—

When the plaintiff is out of possession advalorem court fee is payable.

Amirunnessa Vs. Harun Mia, (1985) 35 DLR 11.

Section 7- IV(c)— Advalorem fee to be paid for cancellation of document-

In a suit for cancellation of document advalorem Court fee shall have to be paid.

Sufia Khanon Vs. Faizunnessa. 39 DLR (AD) 46.

Section 6— Deficit court fee-Section 148 and 149 and Order 7 rule 11 of the Code of Civil Procedure 1908— Provisions of Order 7 rule 11 is directory—

Discretion of the Court under section 6 of the Court Fees Act and section 148 and 149 of the Code of Civil Procedure is not controlled by Order 7 rule 11, and as such the provision of rule 11 of Order 7 should be reconciled and harmonised with the provisions of section 6 of the Court Fees Act and sections 148 and 149 of the Code of Civil Procedure for making a reasonable elasticity to facilitate justice and further its ends. The provisions of rule 11 of Order 7 is directory and not mandatory.

Jesmin Ara Begum Vs. Golam Mainuddin. 12 BLD (HC) 353.

Appeal against rejection of plaint-

Order of rejection of plaint amounts to a decree for all purposes. Value of the subject matter of appeal is the same as the value of the subject-matter of the original suit. Advalorem court fees of the amount paid in the original suit should be paid on memorandum of appeal.

Md. Basiruddin and others Vs. Jamiruddin and others. 2 BLD (PIC) 201.

Section 7(IV)(C), 7(V)(a) and 8C-Proper valuation of the suit and relief sought for- Payment of sufficient court fees— Enquiry by court as to proper valuation and objective standard—

Where there is objective standard of the market price of the subject-matter, the suit must be valued according to the market value. Court can hold enquiry under section 8C to ascertain the valuation. In a suit for declaration of title with consequential relief in the form of recovery of possession or permanent injunction advalorem court fee on the valuation need be paid as required under section 7(IV)(C) of the Court Fees Act.

Syed Ahmed Vs. Keshab Chandra and another. 8 BLD (HCD) 60.

Section 46— Act aims at securing the fiscal interest of the State—

Court Fees Act is the fiscal law which mainly aims at securing the revenue interest of the state. It prescribes the fees to be paid on documents used in the courts and also casts duty upon the court to strictly adhere to the provisions of the Act.

Momtaz Mallick Vs. The Taxing Officer. (1968) 20 DLR (HC) 599.

Registrar of the High Court while acting as a Taxing officer under section 5 of the Court Fees Act is not a court within the meaning of article 98(5) of the Constitution. Therefore Taxing officer is a statutory persona designata nominated by the Chief Justice.

Momtaz Malik Vs. Taxing officer (1967). 19 DLR (SC) 1.

Section 6- Rejection of plaint whether a decree—

A plaint may be rejected for nonpayment of deficiet court fee under Order 7 rule 11 of the Code of Civil Procedure as well as under section 6 of the Court Fees Act. When such rejection involves determination of question between the parties, then it operates as a decree.

Forman Ali Dewan Vs. Mansur All (1961) 13 DLR (HC) 836.

Section 7 (IV) (C)—

In a declaratory suit with consequential relief for permanent injunction advalorem court fee must be paid.

Ambar Ali Talukder Vs. Ajman Alt (1967) 19 DLR (HC) 221.

Section 17— Declaratory suit that a decree is fraudulent and not binding upon plaintiff— Fixed Court fee payable—

In a suit for declaration that a decree is fraudulent and not binding upon the plaintiff is maintainable without seeking relief for setting aside or cancellation thereof and as such fixed court fee is payable.

Hemalini Basu Vs. Md. Sahed Ali Bhuiyan. (1960) 12 DLR (HC) 224.

Payment of deficit court fee- effect of—

When deficit court fee is paid within the time allowed by the court the suit shall be deemed to have been instituted on the date on which the suit was actually filed.

PLD 1963 (Lah) 23

Section 7— For cancellation of document advalorem court fee payable—

In a suit for cancellation of a deed plaintiff shall have to pay advalorem court fee.

39 DLR (AD) 46.

Section 7— Cancellation of deed when not necessary—

Where the plaintiff is not a party to the impugned deed he is not required to seek cancellation thereof. Simple declaration will suffice on payment of fixed court fee.

21 DLR (HC) 468.

Section 7 (X)— Suit for specific performance of contract—

A suit for specific performance of contract involves execution of sale deed and delivery of possession and in such a suit advalorem court fee is payable.

7 DLR (HC) 157.

Non-Payment of deficit court fee—

Where the plaintiff neither pays the deficit court fee within the time allowed by the Court nor prays for time the court may dismiss the suit.

PLD (1981) (SC) 371.

Valuation of suit and jurisdiction of court—

Valuation of a suit for declaration and consequential relief for the purpose of jurisdiction and court fee shall be the same.

PLD 1949 (Lah) 8. PLD 1959 (Pesh) 101.

Article 4 and 5 — Court fee payable on application for review—

In an application for review under article 4 and 5 of the First schedule of the Court Fees Act, court fee payable shall be calculated on the basis of the fee leviable on the plaint or memorandum of appeal according to the law in force at the time the plaint or memorandum of appeal was filed when the review petition is presented.

8 PLD (Dhaka) 657.

Court of Wards Act, 1879

Citation: 4, MLR (1999) (AD) 173, 4, MLR (1999) (AD) 417,

Case Year: 1879

Subject: Court of Wards

Delivery Date: 2018-04-09

Court of Wards Act, 1879

(Act. IX of 1879)

Section 18(a)— When dispute over title is involved—

When court directed the parties to maintain status quo, the Bhawal Raj Court of Wards Estate was not justified to take over possession of the suit land in violation of the court's order. Section 18(a) does not apply when dispute over title is involved.

Bhawal Raj Estate Vs. Syed Md. Osman Gani and others. 4, MLR (1999) (AD) 173.

Applicability of writ jurisdiction—

Land Reforms Board and the Couit of Wards while purporting to perform its function under certain statutory-provisions come under the writ jurisdiction of the High Court Division.

Government oj Bangladesh represented by Secretary Ministry of Land Vs. M/s East West Properly Development Pvt. Ltd. represented by Us Director Md. Abu Sufian and others. 4, MLR (1999) (AD) 417.

Delimitation of the Constituencies Ordinance, 1976

Citation: 1, MLR (1996) (HC) 120, PLD 1963 (Lah) 332, 17 DLR (HC) 199, 17 DLR 687, AIR 1925 (All) 24, PLD 1982 (Kar) 449, 21 DLR (WP) 115, PLD 1976 (Lah) 1473, PLD 1981 (Lah) 732, 43 DLR (HC) 543, AIR 1945 (Lah) 56, PLD 1954 (Lah) 515, AIR 1927 (Lah) 155, 20 DLR (

Case Year: 1976

Subject: Delimitation of the Constituencies

Delivery Date: 2018-04-09

Delimitation of the Constituencies Ordinance, 1976

Delimitation of the Constituencies Ordinance, 1976— Section 6(2)(3)—Discretion of Election Commission—

The expression "as far as practicable" employed in section 6(2) are directory in nature and the. Election Commission has wide discretion to take decision after considering the conditions enumerated therein. High Court Division cannot arrogate to itself jurisdiction of making assessment of facts under dispute under article 102 of the Constitution.

Md. Abul Hashitn Vs. Election Commission. 1, MLR (1996) (HC) 120.

Dissolution of Muslim Marriage Act, 1939— Section 2(i)— Dissolution of marriage when husbands' whereabouts are not known for four years—

Where the whereabouts of the husband are not known for a period of four years the wife is entitled to get a decree for dissolution of her marriage.

Most Daalan Vs. Dosa. PLD 1963 (Lah) 332.

Wife's refusal to husband to perform her marital obligation disentitles her to maintenance—

Where the wife without lawful excuse refuses herself to her husband or wilfully fails to perform her marital duties, she can not claim maintenance and the husband is not bound to maintain her and as such she also can not file a suit for dissolution of marriage on ground of non-maintenance.

PLD 1980 AG&K (SC) 107.

Dissolution on ground of nonpayment of prompt dower—

On ground of non-payment of prompt dower the wife is entitled to get dissolution of her marriage in exercise of delegated power of divorce.

Guf Nawaz Khan Vs. Meherunnessa Begum. 17 DLR (HC) 199.

Dissolution of Marriage on ground of imprisonment for 7 years or above—

A wife is entitled to get dissolution of her marriage on ground of her husband's being imprisoned for 7 years or more subject to the finality of the sentence.

Amena Khalun Vs. Serqjuddin Sarder. 17 DLR 687.

Dissolution on ground of impotency of the husband—

Impotency of the husband is a good ground for dissolution of marriage. The Court upon application of the husband if any should allow one year time to the husband to show that he has ceased to be impotent. If no application is filed by the husband the court shall decide the suit forthwith.

Md. Ibrahim Vs. Altafan. AIR 1925 (All) 24,

PLD 1982 (Kar) 449.

Option of puberty- Repudiation of marriage—

A girl married during her minority can repudiate her marriage after attaining puberty and before attaining the age 18 years. Once the right is exercised the marriage stands dissolved.

Most Sardar Banu Vs. Saifullah Khan. 21 DLR (WP) 115.

Dissolution of marriage on ground of habitual cruelty—

Habitual ill-treatment both mental and physical constitute good ground for dissolution of marriage.

PLD 1976 (Lah) 1473;

PLD 1981 (Lah) 732;

43 DLR (HC) 543.

Dissolution on ground of disposal of wife's property—

Disposal of wife's property without her consent in order to deprive her of her property is a ground for dissolution of marriage.

AIR 1945 (Lah) 56;

PLD 1954 (Lah) 515.

Dissolution on ground of false adultary charge—

False charge of adultary is a ground for dissolution of marriage.

Md. Hussain Vs. Begum Jan. AIR 1927 (Lah) 155.

Dissolution on ground of adultary—

When the wife admittedly is living in adultary the marriage shall be dissolved.

Siddiq Vs. Sharfan 20 DLR (HC) 117.

Dissolution of Muslim Marriage Act, 1339 (Act No.VIII of 1939)— Section 2(ii)— Dissolution of marriage— Grounds of and law related therewith—

The Dissolution of Muslim Marriage Act is a consolidating and codifying statute with regard to the rights of women married under the Muslim law which provides for dissolution of marriage. Where it is established that a husband had failed to provide maintenance to his wife for a period of two years or more the wife is entitled to a decree for dissolution of her marriage under section 2(ii) of the Act no matter whether she attained puberty or not.

Basiruddtn Ahmed Vs. Jolekha Khatoon. (1953) 5 DLR 527.

Husband under no obligation to provide maintenance when the wife deserts him—

Where the wife refuses herself to her husband without any lawful excuse and deserts her husband or otherwise wilfully fails to perform her marital obligations, she has no right to claim maintenance from the husband and if the husband in that case does not maintain the wife it cannot be said that there was negligence or failure on the part of the husband to provide for the maintenance of his wife.

Alimuddin Karikar Vs. Salamatunnessa (1953) 5 DLR(HC) 36.

Option of puberty— Repudiation of marriage—

Where a minor girl has been given in marriage before she attained the age of 15 years no matter whether by her father, uncle or grand father or other guardian, she is entitled to repudiate the marriage before attaining the age of 18 years provided the marriage has not been consumated.

Mohammad Bibi Vs. Raja PLD 1962 A&J. K. 7.

Option of puberty— How can be exercised—

Option of puberty can be exercised at any time before attaining the age of 18 years by the girl where the marriage has not been consumated, in a variety of way even without instituting any suit. Withholding of consent to the marriage may be expressed by giving notice to the husband through her attorney, by publishing such notice in newspaper or by getting her remarried.

Sarwar Jan Vs. Abdul Majid. PLD (1965) (WP) (Peshwar) 5.

Dissolution of marriage on ground of cruelty—

Marriage may be dissolved on ground of cruelty to the wife. That the wife was unfaithful to the husband is no ground to refuse dissolution.

Begum Zohura Vs. Major General Md. Ishfeque Majid. (1956) 8 DLR (WP) 1.

Section 2(viii) (a) — Dissolution on ground of false charge of adultary—

Imputation of consistent allegation by the husband against his wife for her involvement with another person definitely constitutes a cruelty within the meaning of sub-clause (a) of clause (viii) of section 2 of the Dissolution of Muslim Marriage Act, 1939 and thus the wife is entitled to a decree for dissolution of her marriage on such ground of allegation of adultary.

Hasina Ahmed Vs. Sued Abul Fazed (1988) 32 DLR (HC) 294.

Section 2— Grounds for dissolution of marriage so enumerated thereunder are not exhaustive —

Section 2 does not cover all the grounds for dissolution of marriage. Therefore marriage may be dissolved on any other valid ground under th'e Muslim Law in addition to the grounds contanied therein.

Most Aishan Bibi Vs. Sair (1958) 10 DLR (WP) 7.

Incompatibility of temperament— Not a ground for dissolution of marriage—

Under the Muslim law incompatibility of temperaments, aversion or dislike cannot form a ground of dissolution of her marriage.

Syeda Khanam Vs. Samir (1952) 4 DLR (FB) 134.

Non-payment of dower on demand-Dissolution of marriage on exercise of delegated powers—

Marriage may be dissolved in exercise of delegated power by the wife on ground of non-payment of prompt dower on demand.

Cut Nawaz Khan Vs. Meherunnessa. PLD 1965 Dhaka 274.

Section 2(viii) (b) Husband associating with women of ill repute or leading immoral life is good ground for dissolution of marriage—

A suit by a wife for dissolution of marriage on ground of her husband's associating with women of ill repute or leading an immoval life is a valid ground for dissolution of her marriage.

(1951) PLR (Lah) 804.

Section 2(viii) (d)— Disposing of wife's property— ground for dissolution of marriage—

Alienation of property of the wife by the husband, appropriation of the sale proceeds even in the face of pressing need, constitute ground for dissolution of marriage for the wife.

Bashirullah Vs. Mst. Sardar Begum. (1955) 7 DLR (WP) 87.

Dhaka University Order, 1973

Citation: 2, MLR (1997) (AD) 358, 12 BLD (AD) 309, 42 DLR (HC) 262.

Case Year: 1973

Subject: Dhaka University

Delivery Date: 2018-04-09

Dhaka University Order, 1973

(P.O. No. 11 of 1973)

Article 56(3)—Constitution of fact finding committee—permissible—

Constitution of fact-finding committee for ascertaining the prima-facie truth of the allegations being covered by article 56(3) of the Order is not illegal and as such cannot be quashed.

A.H.Mahbubul Alam (Professor) Vs. The University of Dhaka and others. 2, MLR (1997) (AD) 358.

Article 52— Appeal to Chancellor— Not alternative efficacious remedy— Writ jurisdiction may be invoked—

Any person aggrieved by an order of the authority of the University may appeal to the Chancellor for redressment of grievance. The Chancellor then decide the appeal after affording an opportunity of hearing to the other-side or many appoint a Commission to enquire and report which are to be routed through the Syndicate. The remedy by way of appeal is cumbersome and is not efficacious and as such the writ jurisdiction of the High Court Division under article 102 of the Constitution can well be invoked.

The Controller of Examination, Universiiy oj Dhaka Vs. Mohiuddin and others. 12 BLD (AD) 309.

Rule 6— Appointment of Enquiry Committee— Not illegal—

In the absence of any specific provision the Vice Chancellor can appoint Enquiry Committee and act on the findings of the Committee and in so doing no illegality is committed.

Forzana Haque Vs. University of Dhaka. 42 DLR (HC) 262.

Drugs (Control) Ordinance, 1982

Citation: 3, MLR (1998) (HC) 81, 39 DLR (HC)158. 7 BLD (BCD) 182

Case Year: 1982

Subject: Drugs (Control) Ordinance

Delivery Date: 2018-04-09

Drugs (Control) Ordinance, 1982

Section 6A— read with rule 44 of the Drug Rules, 1946— Article 102 of the Constitution not applicable— Cancellation of registration- Remedy by way of appeal—

There is clear provision of law for remedies by way of appeal against cancellation or suspension of registration/licence of any medicine and as such application under article 102 of the Constitution is riot maintainable.

Square Pharmaceuticals Ltd. and another Vs. Government of Bangladesh represented by the Secretary Ministry of Health and others. 3, MLR (1998) (HC) 81.

Drugs Act, 1940 (Act XXIII of 1940)— Drug Control Ordinance, 1982—

Without the recommendation of the Drug Control Committee, the Licensing authority cannot cancel the registration of a medicine.

Ruhul Amin Vs. Director, Drug Administration, 39 DLR (HC)158. 7 BLD (BCD) 182.

Emergency Requisition of Property Act, 1948

Citation: 2, MLR (1997) (AD) 192, 2, MLR (1997) (AD) 310, 3, MLR (1998) (AD) 111, 3, MLR (1998) (AD) 193, 4, MLR (1999) (AD) 136, 4, MLR (1999) (AD) 403, 3, MLR (1998) (HC) 18

Case Year: 1948

Subject: Emergency Requisition of Property

Delivery Date: 2018-04-12

Emergency Requisition of Property Act, 1948

(Act. No.XIII of 1948)

Emergency Requisition of Property Act, 1948— Section 5(7)—Acquisition of permanent nature—claim for return—

Construction of road on a requisitioned land presupposes acquisition of permanent nature. When the owners received compensation money and remained silent for over 30 years, they cannot claim return of the portion of such acquired land simply on the ground of non-publication of notification under section 5(7) of the Act.

Abdul Motaleb and others Vs. Fazle Karim and others. 2, MLR (1997) (AD) 192.

Section 3— Government Instructions for releasing the unutilised land under acquisition to original owner— Do not create legal right—

The inter-ministerial communications are merely policy guidelines of the Government as to how the excess land are to be treated. Such instructions do not create any legal right for the petitioner to get return of the excess land. Alhaj Abul Basher being dead his heirs.

Hosne Ara Begum and others Vs. Bangladesh represented by the Secretary Ministry of Land Administration and others 2, MLR (1997) (AD) 310.

Section 3 and 5— Annulment of acquisition—When cannot be allowed—

Where certain land has been acquired after service of order under section 3 and notice under section 5, the successor of the original owners can not claim the same to get back after 22 years. In appropriate case the Deputy Commissioner may annul acquisition.

Nurul Islam Khan (Md) and others Vs. Secretary Ministry of Land and others. 3, MLR (1998) (AD) 111.

Section 5 (1A) and section 5(3)-Service of notice—Effect of Subsequent transfers-

Whenever the notices under sections 5(1A) and 5(3) of the Emergency Requisition of Property Act, 1948 upon the original owner are served which is the mandatory requirement of law in a land acquisition proceedings for public purposes, no fresh notice need be issued upon the subsequent transferees of the land.

Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193.

Section 5,(1) (a), 5(3)— Notices in requisition proceeding— Code of Civil Procedure 1908— Order 47 Rule 1 — Review of judgment—

When the fact of service of notice under section 5(1) (a) and 5(3) of the Emergency Requisition of Property Act, 1948 was duly established and the Appellate Division passed the judgment after consideration of all the relevant aspects, there is nothing on which the judgment calls for review, because such an exercise will amount to rehearing of the appeal which is not permissible in law.

Abul Hossain and others Vs. Bangladesh represented by the Secretary Ministry of Land and others. 4, MLR (1999) (AD) 136.

Section 8- Release of property from requisition—

Unless acquired under section 5(7) of the Emergency Requisition and Acquisition of Property Act, 1948 the question of return of the property in question is a case of release of the property from requisition under section 8 of the Act.

Janata Housing Ltd. represented by its Managing Director Vs. Secretary, Ministry of Land, Gout, of Bangladesh & others 4, MLR (1999) (AD) 403.

The Enemy Property Laws, 1965

No fresh V.P. case can be started after 23.3.1974—

Where it is not proved that the owner of the property left for India and settled there permanently before or during the continuance of the Disturbed Persons (Rehabilitation) Ordinance, 1969, (Ordinance No 1 of 1969) the property of the said owner can not be treated as enemy or vested and non-resident Property. No fresh V.P. case can be started after 23-3-1974 on which the Ordinance No 1 of 1969 was repealed.

Dayal Chandra Mondial and others Vs. Assistant Custodian, Vested and nonresident property and A.D.C (Rev) Dhaka and others. 3, MLR (1998) (HC) 18.

Emigration Ordinance 1982

Citation: 4, MLR (1999) (AD) 5

Case Year: 1982

Subject: Emigration

Delivery Date: 2018-04-12

Emigration Ordinance 1982

(Ordinance No.XXIX of 1982)

Section 14(1)— Cancellation of licence and forfeiture of security without proper show-cause notice— Violation of natural justice—

Licence is a legal privilege and not a charity. Once granted licence can not be cancelled without sufficient ground and proper show cause notice providing adequate scope of defence. Show cause notice is not a mere technicality, nor it is an idle ceremony. The show cause notice must not be vague and ambiguous. Cancellation of licence without proper show cause notice and without reasonable opportunity of defence is grossly arbitrary and violative of natural justice and as such is not sustainable in law.

Government of Bangladesh and others Vs. Md. Tajul Islam. 4, MLR (1999) (AD) 5.

Evidence Act 1872 (Part-I)

Citation: 3, MLR (1998) (AD) 59, 3, MLR (1998) (AD) 57, 2, MLR (1997) (HC) 38, 4, MLR (1999) (HC) 158, 3 MLR (1998) (AD) 212, 3, MLR (1998) (AD) 193, 1, MLR (1996) (AD) 46, 3, MLR (1998) (AD) 54, 3, MLR(1998) (HC) 18, 1, MLR (1996) (HC) 256, 5 MLR (2000) (AD) 171,

Case Year: 1872

Subject: Evidence

Delivery Date: 2018-04-11

Evidence Act 1872

(Act I of 1872)

Section 33— Use of evidence recorded by Magistrate of Marine Court by Admiralty Court- Whether permissible—

The evidence of the witnesses recorded by the Magistrate of the Marine Court cannot be used by the Admiralty Court for determining the amount of compensation.

Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others. 3, MLR (1998) (AD) 59.

Section 65— Secondary Evidence-When admissible—

When the original is lost or destroyed the copy thereof as secondary evidence is admissible under section 65 of the Evidence Act.

Abdul Khaleque Mollah Vs. Mr. A.B.M. Zakaria & another. 3, MLR (1998) (AD) 57.

Sections 91 and 92—Documentary evidence- Exclusion of oral evidence—

As provided under section 91 no evidence other than the document itself is admissible when the terms of contract or disposition of property are reduced to a document. Similarly section 92 prohibits contradiction of the contents of documents by oral evidence. Nadabipatra neither creates any interest nor it transfers title.

Khorshed Ali Bhuiyan being dead his heirs Shamsun Nahar and others Vs. Gunjor Ali and others. 2, MLR (1997) (HC) 38.

Section 94—Exclusion of oral evidence by documentary evidence—

Deeumentary evidence excltides oral evidence as contemplated under section 94 of the Evidence Act, 1872.

Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158.

Section 102—Burden of proof—When fraud is alleged— Part of a document can not be challenged—

The burden of proof lies upon he who alleges the fraud. A document can be challenged as forged or fraudulent as a whole. Mo document can be partially challenged either as fraudulent or valid.

Hussain Ahmed and others Vs. Sharifullah and others. 3 MLR (1998) (AD) 212

Section 114(e)- Presumption of correctness of official acts—

So long not rebuted by showing the contrary, the official acts done shall be presumed to have been done duly and correctly.

Bangladesh represented by the Secretary Ministry of Land vs. Abul Hossain and others. 3, MLR (1998) (AD) 193.

Section 115- Estoppel—

In the case under Administrative Tribunals Act, 1980 (Act VII of 1981) acceptance of pensionary benefits in compelling circumstances does not operate as estoppel within the meaning of section 115 of the Evidence Act.

Jahangir Kahir Vs Bangladesh represented by Secretary Ministry of Home Affairs. 1, MLR (1996) (AD) 46.

Section 115— Promissory Estoppel— Previous approval of Government and subsequent cancellation— When arbitrarily done—

The approval given by the Government to certain proposal does not constitute promissory estoppel. Government can no doubt, cancel its approval but it must do so by showing sound and proper reasoning, otherwise such action cannot be sustainable in law. The Government must act consistently and -not whimsically.

The Chairman, Board of Investment and others Vs. Bay Trawling Limited and others. 3, MLR (1998) (AD) 54.

Section 115- Estoppel and Waiver— Cannot be against statutory rights—

There can be no estoppel or waiver against statutory rights. To act in a particular way under protest to protect one's right from impending hazards, does not constitute estoppel or waiver.

Dayat Chandra Mondal and others Vs. Assistant Custodian, Vested and nonresident property and A.D.C (Rev) Dhaka and others. 3, MLR(1998) (HC) 18.

Promissory Estoppel— When the promisor cannot fall back—

Once promise is made the promisor is legally bound to execute lease deed in favour of the promisee. The promisor cannot fall back and is bound by the promissory estoppel.

Dhaka City Corporation Vs. Government of Bangladesh and others. 1, MLR (1996) (HC) 256.

Section 115—Waiver and estoppel—

Plea of waiver and estoppel in order to operate as a bar has to be proved by cogent evidence.

Rokeya Begum Vs. Md. Abu Zaher & others. 5 MLR (2000) (AD) 171.

Section 115— Estoppel—Statutory rights-not defeated—

Statutory right cannot be taken away by a mere assertion of allegations of estoppel or waiver or acquiescence. Unless proved by cogent and reliable evidence, the principle of estoppel does not operate.

Abdus Sobhan Sheikh Vs. Kazi Moulana Jahedallah & others. 5 MLR (2000) (HC) 140.

Section 138— Right to cross examination is not confined to the extent of the matters of examination in chief—

The right of adverse party to cross examine a witness is not confined only to the matters of his examination in-chief but it extends to all the relevant facts involved in a suit.

Khalilur Rahman (Md.) Vs. Md. Asgor Aii. 5 MLR (2000) (HC) 158.

Legal presumption of execution and registration of an old document— Possession is material factor—

So long the contrary is not shown, there is the legal presumption that the disputed Kabala deed which is 50 years old, was legally and validly executed and registered. In deciding the genuineness of a very old Kabala deed, the possession of the land of the deed should be considered as very material and cogent factor.

Lutful Karim and others Vs. Shahidullah and others. 3, MLR (1998) (AD) 215.

Section 138— Re-examination of witness—When can not be done—

Section 138 provides for how witnesses are to be examined, cross-examined and re-examined. After a witness has been examined and cross-examined can be re-examined only for clarification of any ambiguity in his statement. Re-examination of a witness cannot be allowed to destroy the effect of cross-examination.

Ihteshamur Rahman Vs. Masuda Khatun and others. 3, MLR (1998) (HC) 172.

Section 167— Retrial when can not be ordered—

When there are sufficient evidence on record to justify the decision the question of improper admission or rejection of any evidence is immaterial and merely for this no new or fresh trial can. be ordered.

Jamaluddin and others Vs. Md. Abdul Majid and others. 3, MLR ( 1998) (AD) 102.

Admissibility of document in evidence which is not brought through Foreign office—

It is not correct that a certificate of Foreign Educational Institution is not admissible in evidence merely because it is not brought through the Foreign office.

Managing Committee, Pirdangi S.I. Senior Fajil Madrasha and another Vs. Md. Mozammel Hoque and others, 5 MLR (2000) (AD) 316.

Section 3— Admissibility of video Cassette in evidence—

Video cassette is a document within the meaning of the Evidence Act and accordingly is admissible in evidence in judicial proceedings whenever relevant in the like manner as the tape record and its sound and voice-

Mrs. Khaleda Akhter Vs. The State. 5 BLD (HCD) 303.

Evidence Act 1872 (Part-II)

Citation: 7 BLD (HCD) 235, 12 BLD (HCD) 90, 11, BLD (HCD) 386, 12 BLD (HCD) 2277, 1 BLD (AD) 86, 7 BLD (HCD) 193, 3 BLD (HCD) 258, 9 BLD (HCD) 10, 3 BLD (HCD) 170, 4 BLD (AD) 199, 7 BLD (AD) 306, 1 BLD (HCD) 474, 12 BLD (HCD) 161, Section 74, 7 BLD (HCD) 275, 3 B

Case Year: 1872

Subject: Evidence

Delivery Date: 2018-04-11

Evidence Act 1872

(Act I of 1872)

Section 44— Benandar— Transfer of Property Act, 1882 (Act IV of 1882)— Section 41— Decree against the benandar is binding upon the real owner—

The settled principle of law is that a decree against the ostensible owner is binding upon the real owner. When a decree is obtained by the plaintiff by practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree. The real owner can avoid the transfer by his benandar provided that no reasonable care was taken by the transferee in getting the transfer from the benamdar.

Suit an Ahmed Vs. Md. Waziullah and others . 7 BLD (HCD) 235.

Section 44— Plea of fraud— When can be taken—

When in a suit certain document or decree is produced and proved, the adversary party is competent to show that the said document or decree was obtained by fraud. When a subsisting decree, judgment or order is setup by one party as a bar to the claim of one party that party can show that the judgment, order or decree was passed by a court without jurisdiction or was obtained by fraud or collusion and thus it was not necessaiy to have the same setaside previously by a separate suit.

Abdul Gam Khan Vs. Shamsher Ali and others. 12 BLD (HCD) 90.

Section 45— Evidentiary value of opinion of handwriting expert— Responsibility of the plaintiff to prove his own case—

The evidence and opinion of the handwriting expert have to be considered like other evidence and shall be received with great cauton as the opinion of the expert is a week witness. Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence. He can not succeed on weakness of the defence. Disbelieving the defence case by itself does make the plaintiff's case believable. The court has to assess all the evidence on record in their true and real perspective. Even to obtain an exparte decree the plaintiff must prove his case with sufficient evidence.

Sheikh Saliinuddin Vs. Ataur Rahman and others. 11, BLD (HCD) 386.

Section 45, 47, 67 and 73— mode of proving handwriting or signature by either of the four modes—

It is well settled that disputed handwriting or signature may be proved through either of the four methods prescribed by the Evidence Act. The plaintiff cannot be forced by the defendant to resort to any particular method of proving the alleged signature.

Sree Dalai Benerjee alias Moni Vs. Sree Sharat Chandra Pal and another. 12 BLD (HCD) 2277.

Section 56, 78(6) and 85— Power of Attorney executed in Foreign Country— Admissibility in evidence— Notaries Ordinance 1961 (Ord. XIX of 1961) Section 14— Registration Act, 1908 (Act XVI of 1908) Section 33—

If a notarial act is done in a foreign country by a foreign Notary and there is reciprocal arrangement between Bangladesh and that foreign country, then those notarial acts including the power of attorney executed and authenticated by a Magistrate or a Notary Public in that foreign country will be valid and the power of attorney admissible in Bangladesh as contemplated in section 14 and 33 of the Notaries Ordinance, 1961 (Ord. XIX of 1961) and the Registration Act, 1908 (Act. XVI of 1908)

Nurunnessa and others Vs. Babar Ali Bepari and others. 1 BLD (AD) 86.

Section 64— News paper report— Admissibility in evidence without formal proof—

Although a news paper is admissible in evidence without formal proof, the contents of the news paper ifsofacto are not proofs of the fact which according to the nature of particular case require to be proved formally.

Nurul Islam and others Vs. The State. 7 BLD (HCD) 193.

Section 65 and 66— Admissibility of certified copy of an application when the original is not produced—

When certified copy of an application is produced and the authority granting the same fails to produce the original though called for, such certified copy is admissible in evidence as provided under sections 65 (a) (c) and section 66 of the Evidence Act.

Indus Ali and others Vs. Abdul Jabbar Mia. 3 BLD (HCD) 258.

Section 65— True copy of award not to be taken into consideration—

When the original award is not filed in the court the true copy of the same cannot be taken into consideration.

Chan Juri Tafukdar and another Vs. Ching Afeshazy Magni and others, 9 BLD (HCD) 10.

Section 67 and 68— Registered Kabala (sale) deed— Presumption of genuineness—

A kabala deed (sale deed) by reason of its registration does not by itself raise any presumption of its genuineness. The proof of its due execution is necessary in order to attach with it the genuineness.

Abdul Malek Sarker Vs. Gouernment of Bangladesh. 3 BLD (HCD) 170.

Section 67 and 68— Will-Execution, attestation and its proof—

Execution of a Will means and includes the document of a Will by putting his signature or thumb impression as the case may be thereon in sound mind with the full knowledge about the nature and effect of his action, the testator having the testamentary capacity at the time when he executed the Will. The execution shall be attested by witnesses. In order to prove a Will the requirements of sections 67 and 68 of the Evidence Act, 1872 must be complied with.

Paresh Chandra Bhoumik Vs. Hiralal Nath and another. 4 BLD (AD) 199.

Section 67 and 68— Execution of a document — How to be proved— Legal value of Registrar's endorsement—

Though the certificate of endorsement of the Registrar raises a presumption as to the admission of execution of the document by the executant, such endorsement by itself is not the conclusive evidence of the execution of the deed. Therefore the execution of a deed shall be proved to satisfy the legal requirements in the manner as provided under section 67 and 68 of the Evidence Act, 1872.

Abani Mahon Saha Vs. Assistant Custodian uested property and others. 7 BLD (AD) 306.

Section 73— Comparison of handwriting and signature— Court's power— to be exercised with caution—

Though the power of the court to compare handwriting and signature in dispute with admitted ones are unrestricted, this power should be exercised with great care and caution, because unguarded and arbitrary exercise of such power may result in miscarriage of justice. This power of court should be exercised in appropriate case only when the court finds it necessary to do so in the interest of justice.

Syed Nurul Hossain and another Vs. Salerno. Khalun and another. 1 BLD (HCD) 474.

Section 73— Expert's opinion— on thumb impression—

As provided under section 73 of the Evidence Act, 1872, The court is empowered to make comparison of handwriting and thumb impression as one of the modes of proving the disputed document and for coming to a decision thereon. But with regard to the proof of thumb impression (LTI) it is better and more safe course to obtain opinion of expert.

Shiekh Abul Qasem and others Vs. Mayezuddin Mondal and others. 12 BLD (HCD) 161.

Section 74— Court's power of comparison of handwriting— Visa-vis the opinion of an expert—

Where there is positive evidence of expert on the disputed hand writing which is reasonably probable, the contrary opinion arrived at by the court by his own comparison in disregard of the evidence of the expert in an arbitrary way is highly unsatisfactory, imprudent and dangerous which resulted in an error in the decision occasioning failure of justice.

Shaikh Anseruddin and others Vs. Usha Rani Chose. 6 BLD (HCD) 26.

Section 85— Power of Attorney— Its authentication —Legal presumption—

A power of attorney duly executed and authenticated raises a presumption under section 85 of the Act. In a case where the power of attorney has not been authenticated by the Notary Public as required under section 85 of the Evidence Act but is duly executed by the executant and registered under the Registration Act, 1908, it is a valid document. Section 85 does not say that a power of attorney which is not authenticated by Notary Public but is duly executed and registered in Bangladesh is unacceptable and invalid merely on account of its non-authentication. Therefore written statement filed by the attorney so constituted on behalf of the defendant can not be expunged.

Monindra Mohan Kar Vs. Ranadhir Datta and others. 7 BLD (HCD) 275.

Section 91 and 92— In pre-emption case oral evidence contrary to the contents of the sale deed not admissible—

Contents of the deed of transfer can not be contradicted or varied by oral evidence. In a preemption case it is the transfer which is sought to be transferred by way of pre-emption.

Joynal Abedin Molla Vs. Aliar Rahman and others. 3 BLD (AD) 105.

Section 91 and 92— Pre-emption Case— Transfer deed — Whether sale or exchange— How to be decided— Scope of oral evidence—

In a pre-emption case the parties to the kabala deed are not permitted to lead oral evidence to show otherwise than what it purports to be. But a stranger to the document can adduce oral evidence to establish the nature of the deed other than what it contains. The transfer being an exchange but not a sale is exempted from pre-emption u/s 96 of the State Acquisition and Tenancy Act, 1950.

Brindaban Das and another Vs. Ershad Ali Mondal 6 BLD (HCD) 85.

Section 91 and 92— Whether a sale deed can be held to be a mortgage deed on the basis of oral evidence—

It is an established rule of evidence that oral evidence is inadmissible for the purpose of construing the terms of a document or of ascertaining the intention of the parties thereto. Oral evidence of witness that a particular deed is not a sale deed but a mortgage deed is clearly inadmissible.

Mrs. Firoza Mazid and another Vs. Jiban Bima Corporation 7 BLD (AD) 124.

Section 91 and 92— Exclusion of oral evidence by documentary evidence— When not an absolute rule—

Though the general rule of evidence is that documentary evidence excludes oral evidence in respect of proof of particular fact, but in certain circumstances oral evidence is admissible for determining the nature of transaction which as a matter of fact does not infringe section 92 of the Evidence Act. When a document merely relates to an informal memorandum of transaction not embodying the disposition of property, oral evidence is admissible to show that the document was executed in fact for a different purpose other than what it appears to be.

A.M. Abul Has him Vs. Nasiruddin Ahmed & others. 8 BLD (HCD) 33.

Section 91— Kabala when out and out a sale deed—

Section 91 of the Evidence Act does not put any bar on challenging the character of the disputed document as to whether it is a deed of out and sale or an exchange. In the absence of any mention in the kabala deed about exchange or compromise the instrument of transfer can not be construed as one of exchange simply because the ownership of the land was not transfered for another land.

Abu HosanVs. Basir Uddin and others 11 BLD (AD) 231, 12 BLD (AD) 191.

Section 92— Whether oral evidence admissible as to vary or alter or modify the terms of a written and registered document—

The general rule of evidence is that oral evidence is not admissible to vary the terms of written and registered document. But in certain circumstances oral evidence is admissible to prove the nature and character of such instrument to be different from what it is alleged to be or that the instrument was a mere paper transaction never intended to be given effect to or acted upon.

Mozem par and others Vs. Fazlekarim Biswas and others. 4 BLD (HCD) 173.

Section 101- and 102— Onus of proof- Upon whom lies- In a suit for specific performance of contract—

In a suit primarily the onus to prove his own case lies upon the plaintiff. The onus of proof varies and shifts on the other side according to the varying facts and circumstances of different cases. In a suit for specific performance of contract where the signature of the defendant in the deed is proved by the plaintiff his onus is satisfactorily discharged. And on the contrary where the defendant admits his signature but alleges that the same was obtained by threat, coercion and intimidation, then the onus shifts upon the defendant to prove the allegations of threat and intimidation. When the defendants failed to discharge this onus the deed in question stands proved.

Jabed Ali Mondol and others Vs. Jamini Kanta Day arid others. 7 BLD (AD) 156.

Section 101- Onus to prove parentage-

The onus is on the plaintiff to prove that his father was son of a particular father. When oral evidence are inconclusive, resort may be had to the testimony of the documents dealing with the property of the alleged grandfather. The plaintiff never raised any claim earlier against any transfer of the properly and never he was in possession of those properties in suit and consequently in the facts and circumstances the plaintiff failed to prove that his father Nagar xvas the son of Gour Majhi.

Sree Gopal Chandra Mondol Vs. Lasman Dasi and others. 7 BLD (AD) 107.

Section 102— Onus of proof of genuineness of a Hebabilewaj deed—

In a suit for declaration that the Hebabil ewaj deed is forged arid without consideration primarily the onus to prove the allegation lies upon the plaintiff. When the plaintiff has discharged this initial responsibility, the onus then is shifted upon the defendant to prove that there was intention to make the Hebabilewaj and the consideration was paid. All these legal formalities are to be proved by the person who claims the Hebabilewaj deed as genuine.

Monlajur Rahman Vs. A.K.M. MokbuL Hossain and others. 5 BLD (HCD) 18.

Section 103— Pre-emption case- left out party- subsisting interest—

In a pre-emption case the onus lies upon the pre-emptor-petitioner that the left out cosharer has no subsisting right of pre-emption as required under section 96(2) of the State Acquisition & Tenancy Act, 1950.

Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain and others. 1 BLD (AD) 241.

Section 111— Deed executed by Pardanashin lady— Onus of proof—

The burden of proof that the deed executed by a pardanashin lady is genuine and she executed it out of her own volition after clearly understanding the nature of the transaction.

Most Rokeya Khatun Vs. Alijan Bepari and others, 2 BLD (AD) 139.

Section 111— Pardanashin Lady— Legal protection against disposition of her property— such protection is also extended to her legal heirs—

The special rule of evidence is that it should be proved that the pardanashin lady executed the disputed deed of transfer under clear understanding about the nature of the transaction. This protection is also extended to the legal heirs of the pardanashin lady so far the disputed transaction is concerned upon whom her property has been devolved or who represents her.

Most Rokeya Khatun Vs. Alijan Bepari and others. 2 BLD (AD) 139.

Section 111— Hebabilewaj deed— Absurdity as to the reason of the Hebabilewaij—

The special rule of evidence leaning in favour of pardanashin lady with regard to disposition of her property should not be understood as her disability in her right to deal with her property. When the questioned document is found by the final court of fact to be genuine and beyond suspicion, no further examination of the document is called for.

Jahura Khatun and another Vs. Md. Nurul Momen and others. 2 BLD (HCD) 165.

Section 111— Burden of proof of Kabala deed executed by village illiterate pardanashin lady—

The onus is on the person relying on a document executed by an illiterate pardanashin village woman that she under clear understanding of the contents and on independent advice executed the deed.

Rangbi Bewa Vs. Md. Abed Ali and others. 7 BLD (HCD) 319.

Section 114 (e)— Presumption of Public notice— Official act is presumed to have been performed regularly- So long contrary is not established— presumption continues— Emergency Requisition of Property Act 1948 (Act XIII of 1948) Section 5(1)—Notice of Requisition— for public purpose—

Section 114(e) of the Evidence Act, 1872 provides that there shall be presumption that an official act has been done regularly and in accordance with law. Unless the contrary is proved such presumption remains there. Notice served under section 5(1) of the Emergency Requisition of Property Act, 1948 in the absence of rebuttal by showing the contrary has the same presumption.

Government of Bangladesh represented by the Deputy Commissioner, Dhaka Vs. Basharatullah being dead his heirs Fazle Karim & others. 10 BLD (AD) 110.

Section 114(c)— Presumption of judicial and official acts—

Judicial acts as well as official acts are presumed to have been done rightly and regularly in accordance with law under section 114(c) of the Evidence Act.

Md. Akhtar Hossain Vs. Government of Bangladesh. 12 BLD( HCD) 541.

Section 114 (e) (f)— Service of notice under section 106 of the Transfer of Property Act— Presumption of service— when to be drawn— General Clauses Act 1897—S.I l(e)(f)—

Notice determining the tenancy by the land lord to be served upon the tenant under section 106 of the Transfer of Property Act, 1882 is a mandatory prerequisite in a suit for ejectment. When such notice is sent by registered post but is returned with the endorsement as "refused", the notice shall be presumed to have been served. Examination of the postal peon to prove the service of notice will not be necessary. Mere denial of the tenant that the notice was not tendered to him or there was service of the notice is not sufficient to rebut the presumption of service of notice.

Dr. Jamshed Bakht Vs. Md. Kamaluddin. 1 BLD (HCD) 97.

Evidence Act 1872 (Part-III)

Citation: 7 BLD (HCD) 96, 1 BLD (AD) 367, 6 BLD (AD) 182, 6 BLD (HCD) 125, 9 BLD (HCD) 516, 10 BLD (AD) 216, 10 BLD (HCD) 157, 10 BLD (HCD) 381, 6 BLD (AD) 224, 9 DLR (HC) 336, 21 DLR (SC) 46, 9 DLR (PC) 682, 27 DLR (SC) 89, 37 DLR 126, 9 DLR 357, 22 DLR 36, 20 D

Case Year: 1872

Subject: Evidence

Delivery Date: 2018-04-11

Evidence Act 1872

(Act I of 1872)

Section 114— Presumption as to title of Forest Department in absence of Notification. Assam Forest Regulation, 1891(VII of 1891)— Section 17— The Forest Act, 1927— Section 20—

When admittedly the Forest Department has been in the possession of the land under the description "Reserved Forest" for long period, the fact of long possession, management and control of the Forest Department obviously raise the presumption of its title over the land. The absence of notification under section 17 of the Assam Forest Regulation, 1891 or under section 20 of the Forest Act, 1927 as alleged if assumed to be so, does not by itself have the effect of divesting the Forest Department of the land and changing the nature of the land so long as has been known and used as such. By reason of long undisputed possession of the Forest Department there is the presumption under section 114(e)(f) of the Evidence Act, 1872 that notification under section 17 of the Assam Forest Regulation, 1891 or section 20 of the Forest Act, 1927 as the case may be, was duly made.

Kanglu Khasia Vs. Divisional Forest Officer and others. 7 BLD (HCD) 96.

Section 115— Estoppel against defendant denying kol-karsha right—

The karsha right of the plaintiff was auction sold at a time when the defendant was enjoying Kol-karsha right in the land. The defendant got the auction sale set aside under section 174(3) of the Bangal Tenancy Act, 1885 where the plaintiff was impleaded to the proceedings. Thereafter the plaintiff in subsequent suit is estopped from denying the kol-karsha right of the defendant.

Sum Kumar Bis was Vs. Mohd. Idris and others. 1 BLD (AD) 367.

Section 115— No estoppel against statutory right—

No person can be allowed to have the advantage of his own wrong or fraud. When the plaintiff alienated his land in violation of the provision of section 75A (of the B.T. Act) he can not subsequently seek to nullify his own action.

Sree Sudhir Chandra Saha and another Vs. Matiron Bewa. 6 BLD (AD) 182.

Section 115— Right of pre-emption— Whether can be barred by acquiescence and estoppel—

State Acquisition & Tenancy Act, 1950— Section 96—

When the petitioner himself negotiated the sale and his conduct in relation to the sale of land can safely be concluded as acquiescence, he is barred to seek preemption of the said kabala land under the doctrine of estoppel even though the right of pre-emption is a statutory right.

Moulana Abdul Karim Vs. Nurjahan Begum and others. 6 BLD (HCD) 125.

Section 115— Resignation from service— When not accepted as requested— Employee there after continuing in service— Estoppel operates— Bangladesh Biman Corporation Employees (Service) Regulations, 1979—Regulation 53—

As provided under regulation 53 an employee of Biman Corporation may tender his resignation with one month's prior notice or in lieu thereof he is to surrender one month's pay. When resignation is tendered, the employer as a matter of course may accept or reject it. After tendering resignation with immediate effect when the employee was allowed to continue in service his resignation was neither accepted nor rejected. Such conduct of the Employer may be construed to have taken no notice of the resignation meaning thereby that there was no resignation. Subsequently the Employer is estopped from saying that the employee by reason of the said resignation which was not acted upon, is no longer in service.

M.A. Marman Vs. Biman Bangladesh Air Lines. 9 BLD (HCD) 516.

Section 115- Promissory Estoppel-Operates equally against Government—

When a person induces or allows any other person to act in a particular way under certain promise and when in that belief that person acts accordingly, subsequently the said person cannot fall back from the promise. Similarly when the Government grants exemption of import duty to import certain item to overcome the crisis by public notification arid in terms of the said notification when the item is imported, thereafter the Government cannot withdraw the exemption or cancell the notification with retrospective effect and demand higher import duty. In such a case the Government is estopped by promissory estoppel from withdrawing the exemption with retrospective effect.

Collector of Customs, Customs House Chittagong Vs. Mr. A. Hannan. 10 BLD (AD) 216.

Section 115— Estoppel when not applicable—

When a person is declared Chairman by a Notification he acquires a legal status. There cannot be estoppel to the right of his office as Chairman by any of his subsequent conduct.

Hazrat Alt Vs. Election Commission and others. 10 BLD (HCD) 157.

Section 115— Estoppel by lapse of time—

When certain person was appointed by the Chairman of Barisal Pourashava who is competent authority to make such appointment and accordingly the said employee joined the service and rendered 12 years uninterrupted service. Even if there was any irregularity, these were cured with the lapse of time and as such the said appointment can not now be said to be illegal or irregular.

Kanaklata Haider and others Vs. Barisal Pourashava. 10 BLD (HCD) 381.

Section 116— Estoppel against tenant—

When in terms of a contract the tenant entered into the possession of immovable property, the tenant or anybody claiming through him is estopped from denying the title of the landlord, however defective his title may be.

Hajee Abdus Sattar Vs. Ma.hiu.ddin and others. 6 BLD (AD) 224.

Evidence Act 1872 (1 of 1872)— Section 3— Applicability of the Act—

Evidence law is equally applicable to both Civil and Criminal Proceedings.

Kuruma Vs. The Queen. 9 DLR (HC) 336.

Order 41 rule 27— C.RC Production of fresh and additional evidence for the first time before the appellate Court—

Though the law permits additional evidence to be adduced at the appellate stage which inspite of sufficient opportunity was not produced before the trial court, the Supreme Court does not favour such permission of additional evidence as a matter of course.

Secretary to the Government of West Pakistan Vs. Gulzar Mohammed (1969) 21 DLR (SC) 46.

Additional evidence at appellate stage-Where despite reasonable diligence the party could not produce the evidence before the trial court and it is found that had it been produced the decision could be otherwise, such additional evidence in the circumstances for pronouncing proper judgment, should be allowed at the appellate stage.

Cecil Waldron Andrew Vs. Halen Andrew. (1957) 9 DLR (PC) 682.

Section 145— Evidence recorded in preliminary Inquiry is admissible as superlative—

Evidence recorded in preliminary judicial enquiry is admissible in subsequent proceedings subject to the provision of section 145 of the Evidence Act and section 288 of the Code of Criminal Procedure, 1898.

Birendra Chandra Saha Vs. Shashi Mohan Saha (1975) 27 DLR (SC) 89.

Section 3— Requirement of law as to proof when no specified method prescribed—

Unless there is a particular mode of proving a fact to the exclusion of all other modes, the fact in issue may be proved by evidence direct or indirect having sufficient proximity therewith. When the law does not so require any demand for a higher standard of proof is an error of law.

Md. Shahadat Hossain Vs. Kohiladdin. 37 DLR 126.

Section 13— Judgment not inter parties— Admissible in evidence for limited purpose—

A judgment not inter parties, is admissible in evidence because it is the evidence or integration of a litigation or a judicial proceedings, a transaction within the meaning of section 13 of the Evidence Act for the purpose of ascertaining the parties to the dispute and the contention of the parties, the subject of the dispute and final decision of the Court but not for the purpose of proving the reasons for the court's decision and for using its findings of fact as evidence of those facts in another case.

Allauddin Mia Vs. Abdul Latiff. (1957) 9 DLR 357.

Section 13— Document— not interparties— Admissibility of—

Document not interparties is admissible in evidence as an instance of assertion of a right but the recitals of the same are not binding upon the person not party to it.

Azahar Bepari Vs. Abdul Aziz Gazi (1970) 22 DLR 36.

Section 13- Batwara papers-admissibility and legal bearing on title-Papers of Batwara proceedings are not binding upon the parties not party to the proceedings. Though relevant and admissible in evidence Batwara papers have no binding effect on the parties as to the question of title.

Rahimuddin Vs. Abdul Malek Bhuyian (1968) 20 DLR 689.

Section 17— Admission— What the expression means—

Admission is a strong evidence against the maker but he can adduce evidence to show that in fact he did not make any such admission and this was result of bonafide mistake of fact.

Begum Khodeza Akhter Vs. Hajera Khatun 37 DLR (AD) 212.

Section 17— Admission made in plaint is admissible in evidence—

Admission made in plaint is admissible in other suit but this is not a conclusive evidence and the maker can well establish the contrary to show that it is not true.

A.K. Khan vs. Basek Khan 40 DLR (AD) 114.

Section 21- Previous statement of a party- Relevancy of-

Previous statement of a party regarding a fact in issue is relevant under section 21 of the Evidence Act and can be used against him even if he does not appear in the witness box.

Sultan Ahmed Vs. Md. Islam (1984) 36 DLR 81.

Section 33— Previous deposition of a witness— Whether can be tendered in evidence in subsequent proceedings—

When a witness can not be produced in the circumstances enumerated in section 33 of the Evidence Act, previous deposition of such witness can be tendered in evidence in a subsequent proceedings between the same parties where the other party had the opportunity of cross examining him.

Salahaddin Vs. The State. (1980) 32 DLR 227.

Section 33— Section 145— Evidence given in preliminary enquiry is admissible as substantive evidence—

Evidence given in a judicial proceedings and admitted as such under section 33 of the Evidence Act are substantive evidence under section 145 of the Evidence Act on drawing the attention of the witness to the statement in conflict and can well be put in under section 288 of the Code of Criminal Procedure.

Birendra Chandra Sana Vs. Shashi Mohan Saha (1975) 27 DLR (SC) 89.

Section 34 and 35— Accounts book kept by rural people in their own style are admissible in evidence-

Books of accounts maintained by rural people without following conventional style of credit and debit, daily opening and closing balance are admissible in evidence under section 34 of the Evidence Act.

Sadequr Ralvnan Chowdhury Vs. Movi Abdul Bari (1970) 22 DLR 858.

Section 33— Evidence of a witness who is dead or untraceable is admissible—

When a witness who gave evidence before a person authorised by law is not traceable or is dead, such of his statement is admissible in evidence in a subsequent judicial proceedings under section 33 of the Evidence Act.

Moklesur Rahman Vs. Shawkat Ali (1984) 36 DLR (HC) 285.

Section 34— Entries in the books of accounts of business transaction are admissible in evidence—

Entries in the books of accounts regularly maintained in course of business transaction are admissible in evidence subject to the provisions of section 67 of the Evidence Act.

M/s. Bengal Friends and Co. Vs. M/s. Gour Dsnode Saha (1969) 21, DLR (SC) 357.

Section 35— Entry in a public document is admissible in evidence—

An entry in any public document, official register or records relating to a fact in issue or relevant fact, made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by law of the country is by itself a relevant fact.

Kazi Mozhcirul Haque & others Vs. The State (1981) 33 DLR 262.

Section 35— Evidentiary value of mutation proceedings—

Although presumption is attached to official action to have been done correctly under section 35 of the Evidence Act, the evidence of Mutation officer shall be accepted with great caution. The court must insist on some evidence other than the mutation proceedings in support of the sale and any person who relies solely on the mutation proceedings without obtaining anything in black and white evidencing the transaction would do so at his own risk.

Most Bibi Mokhtter Vs. Most. Amerzan and another (1968) 20 DLR (VP) 309.

Section 35— School record as to age of a student is admissible in evidence—

1954 PLR (Lah) 456.

Section 35— Copy of a particular public document prepared under law is also a public document although it is regarded as copy.

1955 PLR (Lah) 407.

Section 35— Evidence as to age—

School Register, admit card, Board's certificate visa vis understatement— School Registar, Admit cards and Board's Certificate are public documents and as such are admissible in evidence under section 35 of the Evidence Act. There being a tendency of understatement of age, their evidentiary value is less and as such the age as stated therein is treated as being not correct.

Abul Hashem Vs. Mobarakuddin. 38 DLR (HC) 145.

Section 36—

Maps and surveys made for revenue purpose by competent person under the authority of law are official documents and are admissible in evidence as to the state of things at the time they were made. These are not conclusive and the presumption as to their correctness is rebutable on the showing of contrary. That survey papers in the absence of contrary are evidence of title.

Barada Prashad Bhattachariya Vs. Girindra Kumar Das (1952) 4 DLR 48.

Section 43— Judgments interparties or not to what extent admissible in evidence in subsequent proceedings—

Judgment interparties or not are conclusive evidence for and against all persons whether parties, privies or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In otherwords the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. But where the judgment is interparties, even recitals in such a judgment are admissible in evidence. A previous judgment is admissible also to prove statement or admission or an acknowledgement made by a party or predecessor in enterest of a party in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion.

Malik Din Vs. Mohammad Aslam (1969) 21 DLR (SC) 94.

Section 40, 41, 42, 43 and 44— Relevancy, admissibility and evidentiary value of previous judgment—

Relevancy and evidentiary value are two different things, the former relates to admissibility of certain thing in evidence which is quite distinguishable from the evidentiary value of the latter. Previous judgment in a subsequent suit may be relevant but its evidentiary value way be different.

Section 40 of the Evidence Act puts similar effect of previous judgment, order or decree in subsequent suit operating as resjudiata under section 11 of the Code of Civil Procedure. Under section 41 final judgment, order or decrece of a competent court in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction is not only relevant but also is conclusive both against the parlies thereto as well as against the rest of the world this being judgment in rem and riot the one in personam. Under section 42 a judgment is relevant if it relates to any matter of public nature but it is not conclusive proof of the fact it states.

Hazi Waziidlah Vs. ADC (Rev) 41 DLR (AD) 97.

Section 61— Secondary evidence can be given when the original is lost—

When it, is found that the original document is lost, certified copy of the document as secondary evidence can be adduced.

Abani Mohan Vs. Assistant Custodian. 39 DLR (AD) 223.

Section 63— Photostat Copies are admissible in evidence—

The minutes recorded in the order book are admitted in evidence after dispensing with their formal proof.

Mahajak shipping Co. Ltd. Vs. M.V. Sager. 39 DLR (HC) 425.

Section 85—

Power of attorney executed by a person resident in Bangladesh and duly registered is a legal document and lawfully acceptable even though itmay not have been authenticated by Notary Public.

Manindra Mohan Vs. Ranadhir 38 DLR (HC) 240.

Section 44- A decree after it is passed— When and on what ground can be challenged—

A decree after it has been passed can be challenged under section 44 of the Evidence Act only on the ground of fraud or collusion and on no other ground.

Rakhal Chandra Das Vs. Banecha Khatun. (1972) 24 DLR 63.

Section 45, 47, 67, 73— Modes of proving handwritings or signature—

Examination by expert is not the solitary mode of proving handwriting or signature. Evidence Act provides the following four modes of proving handwriting namely:-

(1) By proof of signature and handwriting of the person alleged to have signed or written the document (Section 67).

(2) By opinion of experts who can compare handwriting. (Section 45)

(3) By a witness who is acquainted with the handwriting of the person by whom it is supposed to be written and signed (Section 47).

(4) By comparison of signature or writing with others admitted and proved. (Section 73).

Disputed handwriting or signature may be proved by either of the above modes. Benoy Bhushan Saha Vs. Abdus Samad. (1954) 6 DLR 50.

Mode of proving handwriting—

It is not necessary that when a person denies his signature or handwriting in a document, it should be sent to a handwriting expert for opinion. The Evidence Act provides for four modes of proving handwriting or signature as contained in section 45, 47, 67 and 73.

Abdul Gani Malitha Vs. Sariatullah Biswas. (1964) 16 Dili 157.

Section 74, 35 and 85--Entries in the Birth and Death Register are evidence of age—

Entries of Birth and Death Register maintained under the law are public documents and primafacie evidence of the age of the person concerned.

Abdul Rahman Vs. Upendra N. Majumdar. (1952) 4 DLR (HC) 237. KeramaL Alt Vs. Md. Yunus (1963) 15 DLR (SC) 120.

Section 47— Personal acquaintance with handwriting not necessary—

It is not necessary that a person proving a document should be personally acquainted with the writing or signature of the writer of the document. It is enough if he becomes acquainted with them in the ordinary course of business.

Superintendent & Legal Remembrancer Vs. Mazharul Haque (1954) 6 DLR 146.

Section 50— Evidence of family relationship—

Evidence as to devolution and distribution of family property would be very valuable circumstantial evidence of relationship among the members of the family under section 50 of the Evidence Act and would be a very relevant evidence to prove pedigree and relationship between the members of the Family.

Gopal Chandra Mondal Vs. Lashmat Dasi (1982) 34 DLR 145.

Section 57— Judicial notice of reports of Parliamentary Commission—

Judicial notice should be taken of the reports of Parliamenatry Commission as to the matters of the report.

Govindan Selappa Vs. Puchi Benda (1953) 5 DLR (PC) 521.

Section 64— Objection as to proof of document must be taken at the earliest point of time—

The fact that the document was marked in evidence without objection would not tantamount to its being marked with the consent of the other party or it is conceded to be true copy of the original. The principle that the objection against admissibility of document which was not raised before the trial court cannot be raised before the appellate court is not applicable where the original is not produced or there is no evidence as to the loss of original or no explanation for non-production thereof is offered. Secondary evidence of a private document is admissible only when it is proved that the original has been lost or destroyed.

Hussatn AH Vs. Azmaluddin (1962) 14 DLR 392.

Section 65— Secondary evidence —

Where the original is lost secondary evidence of a document is admissible in evidence.

Haji Waziullah Vs. ADC 41 DLR (AD) 97.

Section 68— Attesting witness when should be examined—

When the dispute as to execution of document arose between the executant and the person in whose favour it is executed the attesting witness should be examined.

Md. Rafiq Vs. Md. Zahur Nasir (1956) 8 DLR (WP) 56.

Section 71— Execution of a document— what it means—

The word "execution" appearing in section 71 has the same meaning as in section 68 and means both signing by the executant and attestation thereof. When attesting witnesses failed then other witnesses can be called under section 71 of the Evidence Act to prove the execution and the attestation as well.

Nagendra Bhushan Barker Vs. Surendra Nath Saha (1954) 6 DLR 122.

Section 73— Comparison of handwriting by court—

Court is competent itself to compare disputed handwriting or signature of a person with his admitted handwriting and signature with a view to arriving at a correct conclusion.

Abdul Matin Chowdhury Vs. Chapeta Rani. 37 DLR (HC) 205.

Section 74— Pleadings— Public documents—

Plaint and written Statements are public documents under section 74.

Reazuddin Vs. Aztmuddin 39 DLR (HC) 228.

Section 74—

Public document when the original is lost secondary evidence thereof is admissible. The presumption is rebutable which relates to the correctness of its contents so long the contrary is not shown.

Rahimuddin Ahmed Vs. Bengal Water Ways Ltd. (1979) 31 DLR 28.

Section 36 and section 83— Maps prepared by private person— not public documents—

Maps which are prepared by private person are not public documents and have no presumption under section 83 of the Evidence Act, 1872.

Ramkeshore Vs. Union of India (1975) 27 DLR (SC) 93.

Section 43— Judgment of Criminal Court not admissible in Civil case—

Except as to acquittal the judgment of a criminal case is not admissible as evidence in a civil suits between private parties and as such the findings of the said judgments are irrelevant and inadmissible in a civil proceedings.

S.N. Gupta & Co. Vs. Sadananda Chose. (1959) 11 DLR (HC) 470.

Section 45— Evidentiary value of opinion of handwriting expert—

Since the standard of calligraphy has not yet reached the degree of accuracy, the opinion of the Handwriting expert can not be accepted as absolutely correct and as such it should be taken into consideration with caution and corroborative evidence will be necessaiy. The opinion of the handwriting expert is not binding and the court can also make its own comparison to form its opinion appropriate to the situation.

Eskandar Ali Vs. Most, Alhamara Begum (1976) 28DLR (HC) 791.

Section 60— Evidentiary value of a Medical Certificate—

Unless the Medical Officer is examined in the Court the Medical Certificate given by him as to the illness of a person is not admissible in evidence.

Kutubuddin Ahmed Vs. EPIDC. (1975) 27 DLR (HC) 433.

Section 64— Proof of document when not objected to—

Objection as to the admissibility of a document produced before court must be taken at the earliest point of time. When no objection was raised before the trial court and the document was marked exhibit, it goes as document admitted and no objection can thereafter be entertained at the appellate stage.

Abdullah Vs. Abdul Karim (1968) 20 DLR (SC) 205.

Section 67 and 68— Will how to be proved—

Genuineness of a will has to be proved in the mariner as required by section 67 and 68 of the Evidence Act.

Paresh Chandra Bhownick Vs. Hiralad Nath (1984) 36 DLR (AD) 156.

Section 73— Comparison of handwriting by court is a question of fact—

As provided under section 73, court can compare handwriting of a person with the admitted handwriting and signature which is a matter of fact. Merely by reason of adoption of such mode of comparison even though may it be unsafe as to the accuracy of conclusion, that matter does not become a question of fact and as such the same cannot be interfered with in second appeal (Revision).

Majorullah Mondal Vs. Matiur Rahman (1967) 19 DLR (HC) 188.

Ahsanullah Chowhury Vs. Haji Abdul Jabbar Chowdhury. (1957) 9 DLR (HC) 543.

Faizul Huq Vs. Noor Mia (1960) 12 DLR (HC) 770.

Section 74— Public documents— Plaint and written statements—

Whether public documents. Pleadings in a suit such as a plaint and a written statement when filed in court and are registered become public documents.

Gendla Bepari Vs. Abdul Mansur Mia. (1967) 19 DLR (HC) 349.

Section 75— As to presumption of correctness of document— Bengal Tenancy Act, 1885— Section 103B- Presumption of record of rights-State Acquisition and Tenancy Act, 1950— Section 144A—

Presumption of records of rights— Entries in the record of rights as provided under section 103B and 144A shall be presumed to be correct until such presumption is rebutted on establishing

the contrary.

Ajufunnessa Vs. Sufar Mia (1978) 30 DLR (SC) 41.

Section 85— A Power of Attorney— Execution, authentication—presumption— rebuttal—

A power of attorney duly executed a'nd authenticated has a presumption of correctness as contemplated under section 85 of the Evidence Act and it does not require further proof. But this presumption is rebutable and the onus of rebutting the presumption lies upon him who challenges its genuineness.

Salema Khaiun Bibi Vs. Hemangini Chose Daslidar (1978) 30 DLR (SC) 99.

Section 86— Admissibility of judgment of foreign country without authentication of concerned foreign office—

Certified copies of judgment of courts of foreign countries (India) are not admissible in evidence unless the same is certified to be genuine by the representative of the foreign office of Pakistan (now Bangladesh) located in the foreign country (India).

M/s. Bengal Friends & Co. Vs. M/s. Cour Benode Saha (1969) 21 DLR (SC) 357.

Section 90— Presumption as to 30 years old document—

As to the genuineness of document 30 years old is available under section 90 of the Evidence Act. But a certified copy of a document which is not 30 years old does not raise such presumption. Therefore it should be proved in the manner as required by law as in the case of similar documents of like nature.

Hasan Ali Vs. Azmaladdin (1962) 14 DLR (HC) 392.

Section 90— Custody of a document 30 years old only need to be proved—

Though there is presumption of genuineness of a document 30 years old, it is not ifsofacto admissible in evidence. In order to be admissible in evidence the custody thereof shall have to be proved.

Province of East Bengal Vs. Jamila Khatun Chowdhunj (1952) 4 DLR (HC) 222.

Section 91— Documentary evidence excludes oral evidence—

It is well settled both by express provision of law and consistent judicial pronouncement that documentary evidence with minor exceptions excludes oral evidence". When admittedly there is written document with regard to any particular matter, that document is the best evidence which should be produced before the court.

Gouranga Chandra Banik Vs. Sanjib Kumar Banik (1934) 36 DLR (HC) 235;

Durga Nath Tarafdar Vs. Loke Nath Barker (1953) 5 DLR (HC) 558;

Hochen Mondal Vs. Miraj Ali (1952) 4 DLR 457.

Section 91— Lease created only in respect of Agricultural land— Nature of proof—

It was not necessary under the Bengal Tenancy Act to create lease of agricultural land by written document and thus an oral lease can be proved by a tenant independently of any written document. Khan

Mohammad Biswas Vs. Chittaranjan Sen (1955) 7 DLR (HC) 60.

Money receipt— Necessary—

Oral evidence as to the payment of money is not admissible without production of receipt in support thereof.

1952 PLR(Lah) 11.

Contents of a document can not be proved by oral evidence—

When there is document in writing the contents of such document can not be proved by oral evidence without producing the document itself before the court.

Nasir Ahmed Khan Vs. Most Ismat Jahan Begum (1969) 21 DLR (SC) 145.

Section 91— Sale or mortgage — Determination of— Contents of the document prevailing over oral evidence—

While considering the question as to whether a transaction is a sale or mortgage, the substance of the form may be looked into. When the oral evidence are contradictory and not reliable the contents of the written document must be preferred.

Ananda Chandra Vs. Abdur Rahman (1978) 30 DLR (HC) 311.

Section 92— Document with endorsement to be taken as mortgage—

Document with endorsement of the transaction being a mortgage should be considered. Endorsement cannot be excluded.

Banamali Sardar Vs.Joy Lish Ranjan. (1967) 19 DLR 782.

Section 92— Oral evidence as to the terms of the document when can not be adduced—

Oral evidence which goes to vary the terms of the contract may not be admitted into evidence between the parlies, but if it is not related to any terms or does not intend to vary or add or subtract from its terms, there is no bar of adducing oral evidence to prove matters other than those specifically mentioned in section 92 of the Evidence Act. Oral evidence to prove that possession was not delivered which invalidated the gift or that fraud, intimidation, want of capacity in any contracting parties or failure of consideration or mistake of fact or law which invalidate any document may be admissible and for that section 92 is not a bar.

Jabbar Pramanick Vs. Nurjahan Bewa (1960) 12 DLR 149.

Section 92— Evidentiary value of recitals in documents— No estoppel to purchaser in certain matters—

The principles of estoppel as enunciated in section 115 of the Evidence Act does not operate as bar on the way of the purchaser to give other evidence to show the real nature or character of the land. The recitals in the document are undoubtedly a kind of evidence but those recitals by themselves cannot estop the purchaser from giving other evidence.

Atahar Ali Vs. Abdul Taher Bhuyian (1960) 12 DLR 758.

Section 94— Acquisition of title by transfer of possession—

A person cannot acquire title by transfer of possession where purchase by registered deed is the only method prescribed by law. The kabala is the primary evidence of what was purchased and where the evidence is plain in itself and unambiguous as to existing facts, extrinsic evidence of possession cannot be adduced to show that a different land was purchased, for even if such possession is proved, it cannot prevail against the deed of title. It can only mean that the purchaser took possession of a wrong land.

Durga Nath Tarafdar Vs. Loke Nath Barker (1953) 5 DLR 558.

Section 101 and 102—

Plaintiff is to prove his own case. He can not succeed on the weakness of the defence— Disbelief of the evidence of the defendant does not by itself make the case of the plaintiff believable. Both may be in error.

KM. Pereira Vs. H.G. Martin Dias (1958) 10 DLR (PC) 1.

Section 111— Disposition by Pardanashin lady— Nature and barden of proof of the transaction—

The onus lies on the person who relies on the disposition to establish that the maker of the disposition fully comprehended the facts of the transaction and she made it deliberately of her own free will. Mere proof that execution had been admitted by an illiterate pardanashin lady is not enough. The real point is that the disposition made must be substantially understood and must really be the mental act as the execution of the disposition is the physical act of the maker.

Abdul Malalab Vs. MaLwalla (1954) 6 DLR 202.

Section 111— Trustee cannot enter into engagement having personal interest—

It is the universal rule that no trustee shall enter into an engagement having personal interest which may be in conflict with the interest of those he is bound to protect.

Sm Sabii Diui. Vs. Moharaj Bahadur Ram Bijoy (1951) 3 DLR (PC) 429.

Section 112— Legitimacy of child-Presumption of—

Child born within 280 days of dissolution of marriage or during continuation of marriage is legitimate

unless it is proved that the husband had no access to his wife.

Taza Gul case PLD 1951 (Peshwar) 17.

Woman being with paramour— But husband having access—

Legitimacy of a child cannot be challenged on the ground of living the wife with paramour when no access of the husband to the wife is proved.

G.R. Sane case 33 AIR (Bom) 110.

Section 101 and 103— Burden of proof— Plaintiff to prove his own case—

Burden of proof lies upon the person he who seeks the court to believe the existence of a particular thing. Plaintiff has to prove his own case and can not stand on the weakness of the defence.

Ajafunnessa Vs. Safar Mia (1978) 30 DLR (SC) 41.

Section 114— Presumption as to the correctness of official act—

Under Section 114 of the Evidence Act presumption as to the due performance of the official action has to be drawn when it is proved that such official act was actually done.

Tarangini Devi Vs. Gobinda Mallick (1957) 9 DLR (HC) 57.

Section 114— Presumption as to correctness of the Paper Books—

Printed paper books many be presumed under section 114 of the Evidence Act to be the correct copies of the original records of the case and as such can not said to be copies of the copies thereby claiming them inadmissible as secondary evidence.

Maksud Ali Vs. EskandarAli (1976)28 DLR (SC) 99.

Section 114— Presumption as to registered letter—

Section 27 of the General Clauses Act provides that when it is proved that a letter containing notice has been properly addressed and sent by registered post it shall be deemed that the notice has been properly served.

Haji Khabiruddin Ahmed Vs. Md. Salam Kabir (1982) 34 DLR (AD) 271.

Section 114— Presumption asto official act—

Application pending for 9 years with the relevant authority in the absence of contrary shall be presumed to have been disposed of rather than being left unattended.

Ram and another Vs. Settlement & Rehabilitation Commissioner Khairpur (1969) 21 PLD (Karachi) 412.

Section 114 (d)— Record of rights— Presumption of—

Record of rights finally published raises a presumption asto the correctness of the entries therein at Hie time it was prepared. Such presumption is rebutable asto its continuance by showing evidence to that effect that many changes might take place therein with the lapse of time.

Abdas Sobhan Cliowdhwy Vs. Fazlur Rahman Choudhunj (1957) 9 DLR 467 Sana Mia Vs. Momiaj Bhuiyan (1974) 26 Dm 215.

Presumption of service of notice sent by post—

There is a presumption of service of notice sent under registered post. Unless the presumption is rebutted by establishing the contrary, the service of notice by post is admissible in evidence.

R.P.Saha Vs. Commissioner of Income Tax (1955) 7 DLR 587. 11 DLR 112.

Section 114—

Notice returned with postal endorsement "refused" is conclusive to the effect that it was so refused unless contrary is proved by other evidence to show that it was not duly addressed.

Hamida Begum Vs. Syed Mosharaf HossainShah (1958) 10 DLR 196.

Section 114—

Mere production of the postal acknowledgment receipt is not enough to raise a presumption of service of notice upon the addressee without evidence to the effect that the particular notice as referred to in the receipt was actually sent to the addressee.

M. Salim Vs. Sheikh Abdul Latif. (1962) 14 DLR 186.

Section 114(e)— Presumption as to the regularity of an official act and not of its correctness—

The presumption available under section 114(e) of the Evidence Act relates to the regularity of the official act done and not to the correctness of any entry in electoral roll. Such presumption is rebuttable on showing the contrary.

Shahidullah Kazi Vs. ADC. (1968) 20 DLR 633.

Section 115—Estoppel—

Mere promises de future are not binding on the promisor unless they amount to a contract. A representation inorder to amount to an estoppel must relate to an existing factor, a past event and must be somthing more than a mere promise to do something in future.

West Punjab Government Vs. Pindi Jheelum Vally Transport (1960) 12 DLR (SC) 246.

Section 115—Deed of relinquishment—

If a deed of relinquishment is executed for consideration of which the executant has taken benefit, such agreement can be equitably enforced in the absence of any statutory prohibition.

Quamarudditi Vs. Aisha Bibi (1956) 8 DLR (WP) 86.

Section 115— No estoppel against statute—

Court is bound to act according to the provisions of particular statute. There can be no estoppel against statutory prohibition.

Janendra Chandra Majumdar Vs. Dhirendra Chandra Saha (1956) 8 DLR 170.

Estoppel and waiver—

To establish a case of estoppel or waiver it is necessary to show that the party alleged to have waived its rights had acted in such manner so as to lead the other side to believe that such rights will not be enforced or will be kept in suspense or abeyance for some particular time. A mere gratuitous indulgence shown in not enforcing strictly one's legal rights for a brief period can not give rise to the inference that the rights have been abandoned or waived for all times.

Ocean Industries Ltd. Vs. Industrial Bank. (1966) 18 DLR (SC) 355.

Section 115— Estoppel does not extinguish right but operate as a bar to suits—

Estoppel operates as a bar to suit but it does not operate to extinguish a right. Estoppel deals with questions of fact and not question of right. In other words there is no general rule that a man is stopped from asserting his right which he said he will not assert though it may be that a man who agrees not to assert a right may in certain circumstance be bound by his agreement. The later case however is of relinquishment of right which is a contractual act and as such must be distinguished from mere estoppel.

Qutubuddin Vs. Mohammad Siddique (1969) 21 PLD (Lahore) 418.

Invalid deed— and estoppel—

An invalid transfer can not be validated by recourse to the doctrine of estoppel. Vendee can impeach the validity of the sale deed against the vendor.

Meher Chand Banu Vs. Salimullah (1970) 22 DLR 316.

Section 116— Estoppel against tenant—

The language of section 116 of the Evidence Act is clear enough to constitute estoppel between tenant and the landlord at the time of the creation of tenancy.

Amarchandra Saha Vs. Arif Kumar Das (1981) 33 DLR (AD) 37.

Section 116— Estoppel cannot be against statutory right—

General rule is that no person can be allowed to take the advantage of his own wrong. There can be no estoppel against any statutory right and against public policy.

Matira Bewa Vs. Shudhir Chandra Saha (1983) 35 DLR (HC) 56.

Section 137—

Failure to cross-examine a witness on particular point tantamounts to admission of the statement.

Mst. Zarjan Vs. Mst Nqjmun Nisa (1969) 21 PLD (Peshwar) 119.

Section 145— Previous statement of witness—

A previous admission of a party who has gone into the witness box and has made a statement inconsistent with the admission cannot be used as evidence against that party unless the attention of the witness was drawn to that statement.

Md. Mostaja Chowdliury Vs. Sudhansu Bimal Biswas. (1956) 8 DLR 381.

Section 154— Hostile witness—

It should be remembered that a witness who is unfavourable is not necessarily hostile for a hostile witness has been defined as one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the Court. A witness should not be declared hostile simply because a part of the deposition of a witness goes against a parly who calls him.

Abed Ali Mia Vs. Isrnial Mia. (1960) 12 DLR 578.

Section 162— Court's power to determine the validity of privilege—

Court has abundant power to inspect the document for the purpose of deciding that the privilege is not. being claimed inappropriately or as a matter of routine.

Government of West Pakistan Vs. Begum AKarim (1969) 21 DLR (SC) 1.

Evidentiary value of previous judgment— Binding effect of—

When the new issue raised in a review was not considered in the previous judgement it is not binding upon .he Government Respondent No.4.

Dr. Syed Matiur Rob Vs. Bangladesh. 42 DLR (AD) 126.

Section 17— Admission is strong evidence against the maker—

There is no doubt that admission is a very strong evidence against the maker but it is also open to him to addue evidence to show that it was in fact not an admission and was the result of bonafide mistake of fact.

Begum Khodeja Akhtar Vs. Hajira Khatun. 37 DLR (AD) 212.

Section 59— Evidence of interested witness— value of—

Evidence of interested witness should not be relied upon which is opposed to the principle of the law of evidence.

Abani Mohan Saha Vs. Assistant Custodian. 39 DLR (AD) 223.

Section 64— Admissibility of private documents in evidence—

Plaintiff having relied upon the rent receipts produced must prove their genuiness admissibility of which should be decided by the court in the fact and circumstance of the case.

Md. Jashimuddin Kanchan Vs. Md. AH Ashraf. 42 DLR (AD) 289.

Section 85— Power of attorney— Validity of—

A power of attorney executed by a person resident in Bangladesh and registered although riot authenticated by Notary Public is a legal document and is acceptable in law. Written statement filed by a duly constituted Attorney is valid.

Manindra Mohan Vs. Ranadhir. 38 DLR 240.

Section 82—

Sale deed in the absence of the contrary can not be treated as mortgage deed.

Feroja Majid Vs. J.B.Corporation. 39 DLR (AD) 78.

Section 102—

Limitation is a mixed question fact and law which can be decided in the light of evidence on record.

Afroz Rashid Vs. Fazlul Kartm. 40 DLR (AD) 79.

Section 115— Promissory estoppel—

When the Government by issuing notification granted some exemptions to the importers who on such assurance made some business transaction, the Government subsequently can not retract from the assurance and demand higher tax by issuing another notification. This is a well settled principle of promissory stoppel.

Collector of Customs Vs. Abdul Hannan. 42 DLR (AD) 167.

Consent decree— Appeal against not permissible—

When a decree is obtained by compromise or consent it is not open to appeal.

Parveen Begum Vs. BHBFC. 42 DLR-(AD) 234.

Family Court Ordinace 1985

Citation: 1, MLR (1996) (AD) 113, 2, MLR (l997) (AD), 2, MLR (1997) (AD) 309, 5 MLR (2000) (HC) 276, 5 MLR (2000) (HC), 23, 12 BID (AD) 30, 10 BLD (HCD) 404. 40 DLR (HCD) 483, 40 DLR (HCD) 305, 50 DLR (HCD) 47, 47 DLR (HCD) 514, 50 DLR (HCD) 47, 50 DLR (HCD) 180,

Case Year: 1985

Subject: Family Court

Delivery Date: 2018-04-12

Family Court Ordinace 1985

1985 explained dower and past maintenance. The Family Courts Ordinance, 1985 does nrn'trPatiy¹ way dihiinisli or curtail the'' rights already pos'sfessCd by'a litigant under the. MolYaniriiadah Law or'aiiy other .substantive law with regard to matters nientipned, in, sectioii 5 .of (he Ordinance suit in .the Family ,Qourt well as, for her child. Limitation of three years pfpvided ,by] to isniitala-a drifeW UciH applicable to suit brought by a wile for past rntunteriarifce upto sue years prior to the filing of the suit.

Jamila Khalun Vs. Rustom Ali 1, MLR (1996) (AD) 113.

Section 5 and Section 23— Jurisdiction—Applicable to all citizens irrespective of religion-Jurisdiction of Magistrate u/s 488 Cr.P.C. barred —

The Family Courts Ordinance, 1985 is a, self contained law which provides special forum for speedy disposal of disputes enumerated in section 5. Simply for the use of the words "subject to the provision of the Muslim Family Laws Ordinance, 1961" in section 5, the Family Courts Ordinance is not meant for the members of the Muslim Community only. The 3 'Family Courts Ordinance is applicable -^:to all the citizens of Bangladesh irrespective of their faith or •religion. The Family Court while deciding the^: dispute i shall follow the personal laws of the respective parties. The Family court has exclusive jurisdiction in matters of maintena'nce of wife and children and as such after the coming into force of the. Family Courts Ordinance 1985, 'no Magistrate.' can 'now eritertain _rany application or initiate any proceeding "under.: section _:488 of the Code of , Criminal Procedure.

Rikssi -Das ys, Khuku and others. 3.

Section 16 (5)- Power of Family Court to grant instalments in payment of decretal money—

The Family Court under section 16(5) of the Ordinance, XVIII of 1985 has the power to grant instalments to pay the decretal money not only at the time of passing the decree but also after passing the decree and even during execution proceedings and on subsequent application after the rejection of the first one.

Reshma Sultana Vs. Khacz Ahmed Majumder. 2, MLR (l997) (AD).

Transfer of Case—

The High Court Division in view of convenience transferred the family court case upon prayer of the defendant against whom the suit for restitution of conjugal rights has been instituted. There being no wrong in it, the said order is held not liable to be interfered with.

Abu Adrian Mel. Yusuj alias Dablin Vs. Gul-e-Ulfat Am Yastnin alias Tofi 2, MLR (1997) (AD) 309.

Section 16(3B)— Imprisonment for default of decretal money of each instalment—

When instalments are allowed for payment of the decretal amount, the judgment- debtor is liable to suffer imprisonment for default, of each instalment.

Maksuda Ak liter Vs. Md. Serajul Islam. 5 MLR (2000) (HC) 276.

Section 17— Interlocutory order appealable— No revision lies—

An interlocutory order passed by the Family Court is appealable and as such no revision lies against it under section 115 of the Code of Civil Procedure.

Ferojul Islam (Firoj) (Md.) VS. Mpsiapnat

Jahanara Aktar. 5 MLR (2000) (HC)_, 23.

Section 6(1)— Place of institution-of suit—

Suit under the Family Courts Ordinance, 1985 shall be instituted in the family court within the local limits of whose jurisdiction the parties reside or last resided together.

Abdul Matalib Gaznavi Vs. Toiyab AH and others - 12 BID (AD) 30.

Section 17(1)— Appeal lies to the Court of District Judge—

Code of Civil Procedure apply to the proceedings of appeal before the Court of District Judge-As provided under section 17(1) of the Family Courts Ordinance, 1985 appeals against judgment, decree or order passed by family court, shall lie to the court of District Judge. Court of District Judge is a civil court and in that view of the matter the provisions of the Code of Civil Procedure are applicable to the proceedings before the Court of District Judge. District Judge as referred to in the Family Courts Ordinance is not a persona designata.

Md. Moinuddin Vs. Amina Khan Majlish. 10 BLD (HCD) 404. 40 DLR (HCD) 483.

Sections 5, 10, 11, 13 and 20— Family Court can not grant temporary injunction—

In view of the bar under section 20 of the Family Courts Ordinance, 1985, Family Court can not grant temporary inj unction under Order 39 rule 1 and 2 of the Code of Civil Procedure.

Moqbul Ahmed Vs. Sujla Khatun. 40 DLR (HCD) 305.

Section 5— Family Courts Ordinance, 1985 applicable to all citizens irrespective of faith or religion—

The Family Courts Ordinance, 1985 is not applicable to the Muslims only. It applies to all citizens irrespective of religion. A person of any faith other than Islam also can bring suit under the Ordinance in the Family Court.

Pochan Rikssi Das Vs. Khuku Rani Dasi and others. 50 DLR (HCD) 47.

Section 5—

A Hindu wife can as well institute suit in the Family Court for the maintenance against her husband.

Nirmal Kanti Das Vs. Sreemati Biva Rani. 47 DLR (HCD) 514.

Section 5— Ouster of jurisdiction of Magistrate as to maintenance—

After the coming into force the Family Courts Ordinance, 1985 the jurisdiction of the Magistrate in respect of maintenance under section 488 of Cr.P.C. has been ousted except in case of pending proceedings.

Pochon Rekssi Dasi Vs. Khuku Rani Das and others. 50 DLR (HCD) 47.

Section 5— Wife can claim maintenance for herself and her children—

Under the Family Courts Ordinance a wife can claim maintenance for her as well as for her children. No separate suit need be instituted.

Saleha Begum Vs. Kamal Hossain. 50 DLR (HCD) 180.

Section 5— Residing with mother does not affect the right of children for maintenance—

Even if the children prefer to live with their mother their right to maintenance against their father will not be affected and the father will be under obligation to maintain his children.

Bazlur Rahman Sikder Vs. Taher Begum Shomima. 50 DLR (HCD) 612.

Section 17— Appeal against interlocutory order is not maintainable—

Appeal against interlocutory order passed by Family Court before the District Judge is not maintainable.

Yunus Mia Vs. Abida Sultana Chhanda. 47 DLR (HCD) 331.

Financial Institutions Act, 1993

Citation: 4, MLR (1999) (AD) 308

Case Year: 1993

Subject: Financial Institutions

Delivery Date: 2018-03-31

Financial Institutions Act, 1993

Section 25 (3)— Restrictions on becoming directors of Financial Institution — Section 48- Relaxation of restrictions —

Section 25(3) imposes restrictions upon persons who are already directors of any Bank, Insurance Company or financial institution from becoming directors of any other financial institution. Under section 48 of the Act Bangladesh Bank in consultation with the Government may relax the restrictions in respect of any person. Bangladesh Bank similarly can revoke or cancel the exemption. The restrictions apply equally to both the categories of directors whether representing individual share-holding or company share-holding interest. Section 25(3) of the Act does not offend fundamental right under article 38 of the Constitution.

Phoenix Leasing Ltd. and others Vs, Bangladesh Bank and others- 4, MLR (1999) (AD) 308.

Financial Institutions Act, 1993

Citation: 4, MLR (1399) (AD) 313

Case Year: 1993

Subject: Financial Institutions

Delivery Date: 2018-03-31

Financial Institutions Act, 1993

Section 25(3) — Restrictions on becoming directors—

special statute having overriding effect over all other existing laws. Subject to the provisions of section 48 the restrictions under section 25 (3) of the Act are equally applicable to all the directors whether representing individual or company share holding interest and in the event of revocation or cancellation of the exemption, the office of the director so appointed becomes vacant. The embargo in respect of directors of financial institutions are based on reasonable classification and the scheme of the legislation is aimed at securing discipline in financial sector by preventing monopoly of same group of people from being flocked together and control the capital market.

City Bank Ltd. and others Vs. Bangladesh Bank and others- 4, MLR (1399) (AD) 313.

Foreign Exchange Regulation Act, 1947

Citation: 5 MLR (2000) (AD) 346, (1965) 17 DLR (SC) 369, (1969) 25 DLR 377, (1959) 11 DLR (SC) 239, 39, DLR 425

Case Year: 1947

Subject: Foreign Exchange Regulation

Delivery Date: 2018-04-12

Foreign Exchange Regulation Act, 1947

(Act No.VII of 1947)

Section 3- Suspension of licence of money exchange—

The Principal, Bangladesh Bank has always power to take action against its agent for misdemeanour of criminal nature.

Mustafa Zamil Ahmed Vs. Governor of Bangladesh Bank and others. 5 MLR (2000) (AD) 346.

Section 4(2) and 5(1)— Contract made in contravention of these provisions is not viod or contrary to section 23 of the Contract Act—

The scheme of the Foreign Exchange Regulation Act is not to forbid the making of a contract but merely to insist that the contract shall be performed in a particular manner, namely, by taking the necessary permission of the competent authority which may be regularised by ex-post facto permission under section 21. Therefore it cannot be said that a contract done in violation of any of the provisions of Foreign Exchange Regulation Act is exfacie void or void abinitio or such a contract comes within the mischief section 23 of the Contract Act.

Manwar Huss,ain Vs. Wait Mohammad. (1965) 17 DLR (SC) 369.

Section 23— Failure of the exporter to repatriate sale proceeds in time-Whether constitutes offence punishable—

Unless there is a case of malafide on the part of the exporter, mere failure to repatriate the sale proceeds in time does not make him punishable under section 23 read with section 10 and 12 of the Foreign Exchange Regulation Act.

MA. Ahad Vs. The State. (1969) 25 DLR 377.

Section 27 and Rule 3(2)— Jurisdiction of State Bank—

Conferment of power under rule 3(2) framed under section 27 of the Foreign Exchange Regulation Act, to the State Bank to fix the date within which to bring back the sale proceeds of the exported goods into Pakistan is not a delegation of legislative power and as such the State Bank acted illegally in fixing the period of repatriation of the sale proceeds.

Kalipada Saha Vs. The State (1959) 11 DLR (SC) 239.

Section 5— Permission of Bangladesh Bank to make payment out side Bangladesh.

No payment can be made to a nonresident living outside Bangladesh without the permission of the Bangladesh Bank.

Mahejak Shipping Co. Ltd. Vs. M.V. Sagar. 39, DLR 425.

General Clauses Act, 1897

Citation: 5 MLR (2000) (AD) 250, (1962) 14 DLR (SC) 119, 14 DLR 307, 16 DLR (SC) 722, (1952) 4 DLR 371, (1977) 29 DLR 302, (1962) 14 DLR (SC) 276, (1962) 14 DLR 47, (1965) 17 DLR (SC) 23, (1965) 17 DLR (SC) 431, (1967) 19 DLR 242, (1980) 32 DLR (AD) 1, (1966) 18

Case Year: 1897

Subject: General Clauses

Delivery Date: 2018-04-15

General Clauses Act, 1897

(Act No.X of 1897)

Section 6 — Legal effect of repeal of procedural law/Regulations —

Bangladesh Steel and Engineering Corporation Employees Service Regulations, 1989 is subordinate legislation which cannot supersede the statutory law. Effect of procedural law is always retrospective. On repeal of the regulation before expiiy of the time limit automatically the pending cases came under the amended law. No vested right is created under the procedural law.

Chowdhury Nasimul Baqui Vs. Bangladesh Steel & Engineering Corporation & others. 5 MLR (2000) (AD) 250.

Section 3(25) — Future rent to arise out of land are immovable property — Rent already accrued is not immovable property —

Future rent payable by a lessee to whom the property has already been leased has two aspects and it is only in one of its aspects that it is to be regarded as immovable property. In one aspect it is merely a consideration for the transfer of the rights in land,

Abdul Razzak Vs. Md. Shafi (1962) 14 DLR (SC) 119.

Section 3(25) (34)— Copyright Is movable property—

Copy right falls in the category of movable property as defined under section 3 of the General Clauses Act.

S. Sibtain Fazil Vs. Star Film Distributors (1962) 14 DLR 307.

Section 3(32)—

University of Dhaka is a person as defined under section 3(22) of the General Clauses Act and is thus amenable to the writ jurisdiction of the High Court.

University of Dhaka Vs. Zakir Ahmed (1964) 16 DLR (SC) 722.

Section 6— Right accrued under the law since repealed not to be affected by repeal of the law—

As provided by clause (c) of section 6 of the General Clauses Act 1897 the right accrued under a law can not be affected by subsequent repeal thereof unless a different intention is provided therein either by express provision or by necessary implications.

Sayed Ali Khan Vs. Asiruddin Biswas. (1952) 4 DLR 371.

Section 6(C)— Effect of repealed statute—

In case where a statute is repealed the consequence laid down in section 6 of the General Clauses Act shall follow unless a different intention appears in the repealing statute.

Arshdd Ali Sheikh Vs Government of Bangladesh (1977) 29 DLR 302.

Section 6— Right accrued under the repealed Act—

Proceeding started for enforcement of rights and liabilities accrued or incurred under the repealed Act, still continue to be in force even though the enactment is repealed.

Lt. Col Met Amir Khan Vs. Controller of Estate Duty (1962) 14 DLR (SC) 276.

Section 6— Repeal, substitution, re-enactment—

A substitution of one legal provision by another does in effect, repeal and re-enact an earlier law with or without modification. One of the important purposes of section 6 of the General Clauses Act is to protect the rights and liabilities already accrued or incurred under the repealed enactment. In that view of the matter section 6 does not admit of any strictly technical Interpretation which may frustrate its very purpose.

M/S Kohinoor Mercentile Corporation Vs. Hazera Khatun (1962) 14 DLR 47.

Section 6— Representation of the People (Repeal) Act, 1963—

The Act of 1963 is retrospective in the sense that it applied to the proceedings pending at the time when the Act came into force. Once an appeal has been admitted in the Supreme Court against the decree or order of the High Court the matter becomes subjudice again and thereafter the Supreme Court has seisin of the the whole case. The Supreme Court, therefore, can take into account the provisions of the new law which repealed the Act of 1957 and grant relief accordingly even though.

Syedur Rahman Vs. Chief Election Commissioner (1965) 17 DLR (SC) 23.

Section 6 clause (e)— Applicability to proceedings—

Clause(e) of section 6 of the General Clauses Act 1897 would apply to the legal proceedings in respect of substantive rights which have already accrued under a repealed enactment and would not cover a case where only a procedural right is granted.

Khushiram Vs. Custodian, Evacuee Property (1965) 17 DLR (SC) 431.

Section 6- Law altered during the pendency of a case—

Unless the new law is given expressly retrospective effect the law existing at the commencement of the trial will govern the case.

Mohammad Alarn Vs. The State. (1967) 19 DLR 242.

Section 6(e)- Applicability of—

Section 6(e) of the General Clauses Act 1897 would have application when there is a repeal of any enactment. In a case where there has been amendment of certain provisions of law affecting jurisdiction of court such amendment can not be put at par with the repeal of the statute with or without any saving clause.

Bangladesh Vs. Shahjahan Seraj (1980) 32 DLR (AD) 1.

Section 21— Power to add, amend, vary or rescind—

Section 21 of the General Clauses Act, 1897 provides that the authority which passed certain order has the power to add, amend, vary or rescind the said order but this power does not include the authority to take away a validly acquired right under the order since passed.

Azizuddin Industries Ltd. Vs. Collector of Central Excise and Land Customs (1966) 18 DLR 72.

Section 21— Government's right to revoke its own order—

As provided under section 21 of the General Clauses Act, Government can alter or revoke any of its order provided that such order has not created any right in favour of any person.

Md. Solb Vs. Government of Bangladesh. (1975) 27 DLR 316.

Section 3(10)- Collector meaning of—

After partition of India in 1947, Collector who was Chief officer-in-charge of Administration of Excise has been substituted by "Deputy Collector of Narcotics and Liquour" with power to ssue, suspend and cancel licence.

Gopal Chandra Saha Vs. Deputy Commissioner. 41 DLR (AD) 60.

Section 3(15)— District Judge-Defined—

"District Judge" has been defined under the General Clauses Act, 1897 to mean 'the Judge of a principal civil court of original jurisdiction in a district but shall not include the High Court Division in exercise of its ordinary or extraordinary civil jurisdiction.

Ruhul Amin Vs. District Judge. 38 DLR (AD) 172.

Section 3(39)- A Company is a person-

"Person" occuring in section 3(39) of the General Clauses Act shall include any company or association or body of individuals whether incorporated or not.

Conforce Ltd. Vs. Titos Gas Transmission. 42 DLR 33.

Section 6- Effect of repeal of a law—

Right provided to an aggrieved person who has already filed an application under para 1 of MLO 9 subsisted after the repeal by operation of sub-para 9 of para 19 of the Fourth Schedule of the Constitution read with section 6 of the General Clauses Act, 1897.

Thus accordingly the President is empowered to create a forum by making an order under para 5 of the Proclamation of Withdrawal of Martial Law for disposing of pending applications under Para 1A of MLO 9.

Mahtabuddin Ahmed Vs. Principal Secretory and others. 42 DLR 1.

Section 19- Additional District Magistrate can perform the functions of District Magistrate—

Additional District Magistrate can lawfally perform function of the District Magistrate in authenticating a declaration.

Waliul Bari Vs. District Magistrate. 38 DLR (AD) 256.

Section 27— Expression "Issued" and "Served"

Expressions "Isued" and "served" are used as interchangeable terms both in dictionaries and Statutes. "Issued" means act of sending out, put into circulation, delivery with authority or delivery.

Nurul Islam Vs. Abdul Malek. 38 DLR 115.

Section 3(2) (b)- Debt to Government-

Debt due to the Government that functioned within the territories now comprised in Bangladesh is a debt to Bangladesh.

Commissioner of Taxes and others Vs. M/S. Mallicfc brothers. 1 BLD (AD) 285.

Section 3(38)— Municipality-Meaning of—

Municipality is a local authority. Property vested in the Municipality being not rent receiver is exempt from acquisition. Therefore the defendant did not acquire tenancy right under the Government. Moreover the defendant also did not acquire any tenancy right under the Non-Agricultural Tenancy Act as the land

Narendra Basu Roy and another Vs. Municipal Committee, Mymensingh. 6 BLD (AD) 297.

Section 6— Relief under the repealed law—

When proceeding is started during the continuance in force of certain law which is repealed subsequently during the pendency of the proceedings relief under the repealed law can well be granted notwithstanding such repeal.

Sachindra Chandra Sutradhar Vs. Md. Mojizuddin. 4 BLD (AD) 67.

Section 21— Locus Poenitentiae—

Lacus poenitentiae refers to power of the Government to rescind or cancel its own order. This power can be exercised till a decisive step is taken. Save and except issuance of an order nothing was done and no enquiry was held when the Government recalled the order. In such a situation it cannot be said that any right had accrued to the appellant which should not be recalled.

Amirui Islam Vs. The Secretary, Ministry of Land Administration and Land Reforms and others. 8 BLD (AD) 25.

Section 27— Notice sent by registered post—

When notice is sent by registered post but is returned with endorsement "refused", section 27 of the General Clauses Act 1897 raises a presumption that the notice has been served. Examination of the postal peon to prove the endorsement is not necessary. Mere denial of the tenant that he did not receive the notice or that the notice was not tendered to him is not sufficient to rebut the presumption.

Dr. Jamshed Bakht Vs. Md. Kamaluddin, 1 BLD (HCD) 97.

Section 27— Service of Notice by registered Post—

Section 27 of the General Clauses Act, 1897 provides for presumption of service of notice when it is proved to have been sent by registered post and properly addressed after lapse of reasonable time.

Hajl Khabiruddin Ahmed Vs. Muhammad Salam Kabir. 3 BLD (AD) 53.

Government Servants (Discipline and Appeal) Rules, 1985

Government Servants (Discipline and Appeal) Rules, 1985

Rule-2(b)

Petitioner was appointedby the Government the Ministry of Finance under the order of the President-respondentNo. 1 the President of the Taxes Appellate Tribunal Division Bench No. 1Dhaka-respondent No. 1 does not come within the definition "authority' northe respondent No. 1 is a superior officer of the appointing authority in thechain of command-the respondent No. 1 had no jurisdiction to start any departmentalproceeding with regard to the conduct of the petitioner-an action has beentaken in the form of departmental proceeding by the respondent No.1 who is notlegally competent to do that. [Para-8 & 9]

Md. Shahjahan HawladerVs. Bazlur Rahman & Anr. 8 BLT (HCD)-223

Guardians and Wards Act, 1890

Citation: 12 DLR (1960) 433, 17 DLR (1965) (WP) 113, AIR 1924 (Mad). 327, 16 DLR (1964) 695, 17 DLR (1965) (WP) 119, 17 DLR (1965) (WP) 134, 19 DLR (1967) (SC) 372, 17 DLR (1965) (WP) 39, 16 DLR (1964) (WP) 207, 20 DLR (1968) (WP) 297, 20 DLR (1968) (SC) 1, 22 DLR

Case Year: 1890

Subject: Guardians and Wards

Delivery Date: 2018-04-15

Guardians and Wards Act, 1890

(Act No.VIII of 1890)

Section 6— Guardians and Wards Act 1890 aoes not interfere with personal law of the Hindus or the Muslims—

The Guardians and Wards Act, 1890 does not alter or affect the rights of the natural guardians under the Hindu Law. The powers of the natural guardians of a Hindu minor are larger than those of a guardian appointed under that Act. A natural guardian may alienate the minor's property even without the sanction of the Court, provided the alienation is one for the necessity or for the benefit of the estate. Mother being the next natural guardian in the absence of the father under the Hindu Law, possesses the power to transfer the properties of the minor for legal necessity and for the benefit of the minor.

Jalaluddin Sheikh Vs. Khirode Chandra Tikadar. 12 DLR (1960) 433.

Section 12— Question of title to a property can not be decided—

The jurisdiction of the Guardian Court under the Guardians and Wards Act is of limited nature. It can not decide title to property in such a proceedings. Any decision as to title by the court in a proceedings under the Guardians and Wards Act is illegal. The proper forum to decide title to property is the civil court.

Altab Nasir Vs. Fazal Bibi 17 DLR (1965) (WP) 113.

Section 15(4)— Two guardians-one for person and another for property—

There cannot be two guardians for one and the same property of a minor. However there may be appointment of two guardians one for the person and the other for the property of the minor.

Konthalathammal Vs. Thanqasamy AIR 1924 (Mad). 327.

Section 17— Interest and welfare of minor should be the paramount consideration while appointing

guardian—

The court having regard to the provisions of Mohammedan Law and the welfare of the minor, should appoint a guardian and not blindly merely because a mother has a preferential right after having taken second husband not related to the minor within the prohibited degrees. In a fit case if the court finds that the person of a minor girl will be better looked after and cared for by the mother even though the mother takes a second husband after the death of the minor's father who is not related to the minor within the prohibited degrees and that her property will be better looked after by the deceased father's mother then the Court may prefer the mother as the guardian of the person and the father's mother as the guardian of the property of the minor.

Johara Begum Vs. Matmuna Khatun. 16 DLR (1964) 695.

Custody of minor is not permanent.

In the event of change of circumstances necessitating the change of custody in the interest of the welfare of the minor an order rf delivery of custody of the minor may be made by the court.

Sultana Begum Vs. Muhammad Shqfi 17 DLR (1965) (WP) 119.

Section 17 and 25— Father is the natural guardian of his minor children.

Even when the minor children are in the custody of their mother, the legal control of the children vests in the father. It would be permissible for the courts to differ from the rule of hizanat stated in the different Text Books on Muslim Law for there is no Quranic or Traditional Text on the point, and come to their own conclusion for the purpose of securing the best interest and welfare of the minor. Where the father did not take care of his minor children nor paid a single penny for their maintenance for long time while in the custody of their mother, having regard to the welfare of the minor children they should not be removed from the custody of their mother.

Zohara Begum Vs. Latif Ahmed. 17 DLR (1965) (WP) 134.

Application for guardianship not to be dismissed for default—

Even if a person seeking guardianship remains absent the Court should not dismiss the application, but it is the duty of the Court to the minor to consider whether in the interest and welfare of the minor a guardian should be appointed.

Malik Khizar Hyat Khanvs. Mst Zainab Begum. 19 DLR (1967) (SC) 372.

Guardianship of minor daughter—

Mere fact that the mother by her remarriage lost the right of Hizanat of her minor child does not finally determine the question of the custody of the minor. The paramount consideration in deciding the question of custody shall always be the interest and welfare of the minor concerned.

Akhter Ahmed Vs. Mrs. Hazoor Begum. 17 DLR (1965) (WP) 39.

Custody of minor—

The rule of Muslim Law that the custody of a boy under seven years of age and a girl under age of puberty should remain with the mother is based on certain fundamental human consideration namely that it is only a woman and the mother who can look after the needs of the child under the ages specified and who can give that love, affection and guidance which are necessary for the proper development of a child.

The mere fact that a mother is poor and has to work for her living can never be a ground to deprive her right of custody of her minor children.

Mst. Hurbai Vs. Ifeman. 16 DLR (1964) (WP) 207.

Gur"dianship and custody explained—

The terms "guardianship", "Custody" and "ordinary residence" are not synonymous because a guardian as defined in clause (2) of section 4 of the Guardians and Wards Act 1890 means a person having defecto or dejure care of the person or property of minor. Such a person may or may not have the custody of the minor. For instance, the guardian does not have the custody of the person of the minor when the minor is under the guardianship of the father but is in the Hizanat or custody of the mother. "Custody" means actual or constructive possession for the purpose of protection,

FaF.ifrnuddin Khokhar vs. Zaibunnessa. 20 DLR (1968) (WP) 297.

Custody— Minor's welfare—

Paramount consideration in returning the minor to the custody of the guardian is the welfare of the minor. No order will be passed to that effect unless the court is satisfied that the welfare of the minor demands such order. Mother is entitled to minor's custody even if she had to leave the home of her husband under imavoidable circumstance.

Rahtmullah Chowdhury Vs. Mrs. Syeda Heloli Begum. 20 DLR (1968) (SC) 1.

Mother who married a stranger can be considered eligible for custody of minor—

A mother who is married to a stranger loses her preferential right of custody over minor child but that will not totally exclude her from being considered fit for guardianship if she is otherwise held on a consideration of all circumstances in a particular case to be competent to be the guardian of her minor child.

Rahela Khatoon Vs. Ramela Khatoon. 22 DLR (1970) 245.

Stranger may be appointed guardian of minor—

Even a stranger in preference to relations may be appointed guardian of a minor. Where it is found that a remote relation has evinced better care than a nearer one he can be appointed guardian for the welfare of the minor.

Rehtmunnassa Vs. Ashraf Mia. 25 DLR (1973) 167.

Hindu Law

Citation: 3,MLR(1998) (AD) 69, 3, MLR (1998) (AD) 76, 3, MLR (1998) (AD) 108, 4, MLR (1999) (AD) 275, 15 DLR (1963) (SC) 58, 28 DLR (1976) 313, 5 DLR (1953) 440, 31 DLR (1979) (AD) 312, 36 DLR (1984) (AD) 225, 15 DLR (1963) (SC) 58, 34 DLR (1982) (AD) 83, 29 DLR (

Subject: Hindu Law

Delivery Date: 2018-04-16

Hindu Law

Hindu Law— Life interest of widow-legal necessity and transfer—

A Hindu widow enjoys life interest in the estate of her deceased husband. She can transfer such property only on the ground of legal necessity. Transfer by a Hindu widow of the property of her husband without legal necessity is not valid and the reversioner can get the restoration of the same.

Sekandar Ali Shaikh (Md) and others Vs. Sree Dilip Kumar. 3,MLR(1998) (AD) 69.

Hindu Marriage— Nuptial rites— Minor variation does not invalidate marriage—

A Hindu marriage is complete as soon as the seven steps are completed. Nuptial rites in Hindu Shastra are complicated and are not easy of comprehension by ordinary participants. Once the fact of marriage is established there is the presumption of valid marriage. Minor variations do not render the marriage invalid.

Utpal Kanti Das Vs. Monju Rani Das. 3, MLR (1998) (AD) 76.

Hindu Law— Section 205— Life interest of widow-transfer-validity of—

Transfer made by a Hindu widow of the property of her deceased husband without legal necessity where she has got life interest although invalid will be binding upon the widow during her life time. After her death the transfer being invalid the said property shall revert to the revisioner.

Sharashi Bala Sarker and others Vs. Patani Sundari Dassaya and another. 3, MLR (1998) (AD) 108.

Hindu Law— Deity can sue by next friend—

It is the settled law that a deity can sue or be sued through Shebait as the next friend. When Shebait fails to discharge his responsibility honestly, worshipper or any person interested in the endowment can sue to protect the debattar property.

Pradip Kumar Chakraborty Vs. Jamila Khatun Bibi and others. 4, MLR (1999) (AD) 275.

Hindu Law— Adoption—

Adoption in Hindu Law is a formal act having far reaching consequences material as well as spiritual and it is generally evidenced by a document. By adoption a person passes out of the family to which he belonged by birth and is transplanted into the family which adopts him.

Perumal Vs. Government of Pakistan. 15 DLR (1963) (SC) 58.

Four castes in Hindu society—

Hindu Society is divided into four castes namely Brahmin, Kshatriya, Vaisya and Sudra. There might be question with regard to the validity of an adoption between one caste and another caste. But If such adoption is found to have been taken place within the broad range of one caste only, such adoption cannot be questioned on the ground of difference in the sub-caste between the parties concerned. Kayastha of Bengal are sudra. It is an admitted position in Hindu Law that there is no bar as such for a "Kayastha" adopting a "Namasudra" both being "Sudras" as such.

Sudhangshu Shekhar Vs. Anath Bandhu. 28 DLR (1976) 313.

Daughter's right of inheritance—

Under the Bengal School of Hindu Law (Dayabhaga) all daughters cannot succeed to the property of their fathers but some of them may and can and it enumerates that the first to inherit is the unmarried daughter and then a married daughter having a male child succeeds and she excludes married but barren daughters and married widowed daughters.

Abdul Gani Khan 'Vs. Tamtjuddin Howlader. 5 DLR (1953) 440.

Adopted son stands equal to natural son—

The word "issue" includes "child". Under the Hindu Law the adopted son in relation to his adopted father stands equally with the natural son in temporal and spiritual matters. Hindu Law does not make distinction between a natural son and adopted son in the matter of inheritence, whether it is in the application of personal law or secular law, the adopted son has the same status with the natural son. Adoption of a surda is not contrary to Hindu Dayabhaga Law.

Anath Bandhu Guha Vs. Sudhangsu She/chore Dey. 31 DLR (1979) (AD) 312.

Daughter of a prostitute inherits her mother's property—

Daughter of a prostitute is entitled to inherit the property of her mother. Question of her legitimacy or illegitimacy is irrelevant.

Geeta Rani Vs. Bangladesh. 36 DLR (1984) (AD) 225.

Hindu joint family property-Accretion by joint income—

Under the Hindu Law if nucleus of joint property exists by the income or out of the proceeds of the property which is claimed, as self acquisition of any particular member of the family may have been acquired such property will be presumed to be the property of the joint Hindu family till the contrary is proved.

Perumol Vs. Government of Pakistan. 15 DLR (1963) (SC) 58.

Joint family property— Burden of proof-

Burden of proof is shifted when the family possessed jointly some property which constitutes the nucleus to acquire property.

Ramesh Chandra Dutta Vs. Nimaikumar Datta 34 DLR (1982) (AD) 83.

Unchastity of widow—

The sole reason for giving her right of inheritence to her husband's property, according to the Texts of Hindu Law is the spiritual benefit she may render to the departed soul as his wife. Acts of un-chastity by a woman, which may be of different grades, may not amount to disavowal of her marital relationship and defacto abandonment of her character as the widow of the deceased husband. Unchastity of the widow is a ground to render her incapable to confer spiritual benefit on her late husband thereby barring her right to inherit husband's property. Remarriage of the widow disentitles her from inheriting her late husband's property.

Widow's right to her husband's property is subject to certain restrictions i.e. she has the right to alienate the property absolutely for what is known as "legal necessity" namely for payment of husband's debts, for performance of acts which conduce to the spiritual welfare of the husband, for discharging obligation of her husband for her own maintenance and for the preservation of the estate. Widow has got life interest and after her death the property shall go to the heirs of her husband and not to her own heirs.

Nurunnabi Vs. Joynal Abedin. 29 DLR (1977) (SC) 137.

Rights of Shebait of Debattar property—

The rights of a shebait / Mohant are that so long as he retains the office he is presumed to have the sole management of the endowment or institution over which he presides. He is in no sense the owner of the property. His position is that of a Mutwalli under Muslim law or a shebait under Hindu Law. The right which he has is derived from his appointment to an office.

Mian Ahmed Ali Vs. Rehabilitation Authority. 16 DLR (1964) (SC) 325.

Income Tax Act, 1922

Citation: 13 BLD (HCD) 384

Subject: Income Tax

Delivery Date: 1970-01-01

Income Tax Act, 1922

Section—10 (2)(XVI)

The expenditure is a capital when it is in- cuffed for securing capital assets or advantage of enduring benefit to the business. But when it is spent for running the business, it becomes revenue expenditure:

The Commissioner of Taxes, Chittagong (South) Zone, Chittagong, Vs. Chittagong Jute Manufacturing Company Ltd., 13 BLD (HCD) 384.

Ref: Raja Bijoy Singh Dudhuria Vs. C.I.T. (1933)UTR. 135; C.I.T. Vs. Travancore Sugar and Chemicals Ltd. (1973)19 I.T.R 307; C.I.T. vs. S.M.T. Kamalabai Juthalal (1977) 108 ITR 755; C.LT. Vs. Sitaldas Tirathdas, (1961)41 ITR 367-Cited.

Industrial Relations Ordinance, 1969

Citation: 11 MLR (2006) (HC) 386, 13 MLR (2008) (AD) 21, 13 MLR (2008) (HO) 275, 12 MLR (2007) (HC) 401, 11 MLR (2006) (HC) 220,

Case Year: 1969

Subject: Industrial Relations

Delivery Date: 2018-03-18

Industrial Relations

Ordinance, 1969

Section 18— Not applicable to dispute regarding cancellation of membership of the workers union—

Dispute relating to cancellation of the membership of the petitioner of the workers union does not fall within the purview of section 18 of the Industrial Relations Ordinance, 1969 and as such the suit in the civil court is held to be quite maintainable. Nasiniddin Ahmed Vs. G.M. Shahabuddin and others 11 MLR (2006) (HC) 386.

Section 34— Labour Court has the jurisdiction to decide the dispute relating to establishment of workers welfare fund—

Companies Profit (Workers) Participation Act, 1968—

Section 3— Management of Industrial undertaking is under the legal obligation of establishing the workers welfare fund—

Hotel and Restaurant being an industrial undertaking the management thereof is required under section 3 of the Companies Profit (Workers). Participation Act, 1968 to establish the workers welfare fund and implement the scheme thereunder. Labour court has the jurisdiction to decide the dispute relating to the implementation of the scheme under section 34 of the Industrial Relations Ordinance, 1969. Hotel Agrabad Ltd. Chitlagong represented by its Managing DircctorVs. Chairman First Labour Court, Chittagong and others 13 MLR (2008) (AD) 21.

Section 34— Provides for enforcement of rights created or guaranteed by or under any law—

Exparte order— While passing exparte order labour court is required to see that atleast minimum amount of evidence is brought on record in support of the claim of the complainant—

It is well settled that the provisions of "section 34 of the Industrial Relations Ordinance, 1969 can be invoked for enforcement of certain rights already created or guaranteed under any law. But the complainant is not entitled under this section to seek for creation or introduction of any right. Labour court is mandatorily required to see that atleast some evidence in support of the claim of the complainant are brought on record before passing exparte order. In the instant case the learned judges of the High Court Division having found these two essential conditions not fulfilled made the rule absolute declaring the impugned judgment and order passed without any lawful authority and of no legal effect. Sylhet Pulp and Paper Mills Ltd. respresented by its Managing Director Vs. Chairman, Second Labour Court, Chittagong and others 13 MLR (2008) (HO) 275.

Section 34— Employee of BADC is not worker within the meaning of Shops and Establishments and as such Labour Court has no jurisdiction to entertain any dispute relating to employee of BADC—

Suspension of an employee for long time without drawing up proceedings is held to be illegal and the period of suspension is declared to be on duty with the entitlement of all the arrear pays and allowances admissible under rules. Transfer of an employee during suspension is held to be illegal. Labour Court has no jurisdiction to decide dispute of employees of BADC and as such its judgment and order are declared illegal and of no legal effect. Bangladesh Agricultural Development Corporation Vs. Chairman 2nd Labour Court and others 12 MLR (2007) (HC) 401.

Section 47-B— Protection against transfer of worker for trade union activities.

Section 47-B of the Industrial Relations Ordinance, 1965 provides protection of a worker against transfer on ground of trade union activities. When the writ petitioner was singled out and was transferred on ground of union activities, and the High Court Division stayed the operation of the transfer order, and the respondent in violation of the stay order terminated his service which the learned judges held to be malafide and declared both the transfer order and the termination order as illegal and passed without any lawful authority. It is further held that the alternative remedy in the labour court being not efficacious the writ petition is quite maintainable. Faniquc Hasan Vs. Titas Gas Transmission and Distribution Company Ltd. and others 11 MLR (2006) (HC) 220.

Industrial Relations Ordinance, 1969

Citation: 5 MLR (2000) (AD) 187, 1, MLR (1996) (HC) 350, 2, MLR (1997) (AD) 198, 1, MLR (1996) (HC) 334, (1981) 33 DLR (AD) 58, (1980) 32 DLR (AD) 162, (1980) 32 DLR 164, (1981) 33 DLR (AD) 58, (1982) 34 DLR (AD) 166, (1978) 30 DLR 141, 37 DLR (AD) 38, 42 DLR (AD)

Case Year: 1969

Subject: Industrial Relations

Delivery Date: 2018-04-17

Industrial Relations Ordinance, 1969

(Order XXIII of 1969)

Section 2 (XXIV) Settlement — It's binding effect—

Settlement arrived at by agreement signed by the Employer and the Employees is binding upon the parties and is enforceable without any approval of the Government.

Carew and Co. Bangladesh Lid. Vs. Chairman, Khulna Labour Court & others. 5 MLR (2000) (AD) 187.

Section-10 and 7A-Cancellatiou of Registration of Trade Union—

Registrar of Joint Stock Companies has the right to cancel Registration of Trade Union on ground of disqualification after obtaining permission from the Labour Court. Members belonging to group of establishments and forming Union, are legally entitled to valid registration.

Friends Fishing Corporation Ltd. & others Vs. Samudrifc Matsha Sikari Jahaj Sramtk Union. 1, MLR (1996) (HC) 350,

Section 34—Entitlement to leave benefits—

A worker who ceased to be in service long before the agreement with the bargaining agent was signed, is not entitled to leave benefits under section 34. But when the Labour Court on compassionate ground granted leave benefits, such order being of substantial justice is not interfered with.

Messers North Bangal Sugar Mills Co. Ltd. Vs. Chairman Labour Court, Rajshahi and another. 2, MLR (1997) (AD) 198.

Section 35— Labour Court is not a Civil Court—

Although Order 9 and Section 151 CPC are not applicable to proceedings of Labour Court, it has ancillary power to vacate the order of dismissal of complaint and decide the same after giving notice to the parties.

Crescent Jute Mitts Ltd.. Vs. Chairman Labour Court Khulna and other 1, MLR (1996) (HC) 334.

Section 34—

In the Industrial Relations Ordinance, 1969, section 34 has been amended in 1970 and thereby both the collective bargaining agent and the individual employer or worker have been given the right to invoke the jurisdiction of the Labour Court. Whereas before the amendment it was only for a party to an industrial dispute which could invoke its jurisdiction. There lies the whole difference.

James Finlay & Co. Ltd. Vs. Chairman 2nd Labour Court. (1981) 33 DLR (AD) 58.

Section 34— Dis-entitlement to compensation benefits on ground of resignation—

A worker who voluntarily resigns from his service is not a worker under section 2 of the Ordinance and cannot maintain an application under section 34 for wages in respect of compensatory leave.

Manager, Kushtia Sugar Mills Vs. Chairman, Khulna Labour Court. (1980) 32 DLR (AD) 162.

Section 34—

Distinction between section 34 and section 25 of L.S.O. Act-Under section 34 of the Industrial Relations Ordinance an existing worker can avail himself of the rights conferred under section 34 and move the Labour Court whereas under section 25 of the Employment of Labour (Standing Order) Act any worker including those dismissed or discharged can move the Labour Court.

A.K. Khan & Co. Ltd. Vs. Chairman, Labour Court Chittagong. (1980) 32 DLR 164.

Section 25 and 34—Conversion of complaint—

Unless provisions of section 34 of Industrial Relations Ordinance, 1969 are complied with application under section 34 cannot be converted into one under section 25 of the Employment of Labour (Standing Order) Act, 1965.

James Finlay & Co. Ltd. Vs. Chairman Second Labour Court. (1981) 33 DLR (AD) 58.

Section 35— Labour Court to function with all members—

Law provides that a two member panel will assist the Labour Court. Absence of one member does not render the decision of the Court illegal. That does not mean that the court may function without a member.

General Manager Vs. Golap Rahman. (1982) 34 DLR (AD) 166.

Labour Court cannot grant injunction—

Labour Court is a civil court for limited purpose and as no power is expressly conferred on it. Labour Court has no power to grant injunction.

S.J.M. Ltd. Vs. Secretary S.J.M. W. Union. (1978) 30 DLR 141.

Section 36— Labour Court deemed to be a Court of Session—

A Labour Court shall have the same powers as are vested in the Court of a Magistrate 1st class under the Code of Criminal Procedure and shall for the purpose of appeal from the sentence passed by it, be deemed to be a Court of Sessions under the Code. In other words for the purpose of an appeal from a sentence passed by Labour Court, it shall be deemed to be a Court of Session under Cr, P.C. and therefore an appeal lies to the High Court Division.

Mokbul Hossain Vs. Bangladesh Milk Producers Cooperative Union Ltd. 37 DLR (AD) 38.

Section 47B— Protection to trade union leaders—

Main object of section 47B of the Industrial Relations Ordinance, 1969 is to give protection to a trade union leader so that for his trade union activities he may not be harassed by the employer by way of transfer without consent.

Abdul Mannan Talukder Vs. Bangladesh House Building Finance Corporation. 42 DLR (AD) 104.

The Industrial Management Service (Abolition, Absorption and Fixation of Seniority) Rules 1982—

Can not be challenged- Ratified in the Seventh Amendment of the Constitution—

The Industrial Management Service (Abolition, Absorption and Fixation of Seniority) Rules 1982, were made by the Chief Martial Law Administrator under the Martial Law dispensation which were also ratii'ied in the Seventh Amendment of the Constitution and both the petitioners and the absorbed IMS officers equally enjoyed benefits under the said rules and as such these Rules cannot be challenged long after 14 years.

Abdus Sattar Khan (Ma) and others Vs. Bangladesh represented by the Secretary Ministry of Establishment and others, 2, MLR (1997) (HC) 161.

Insurance Act, 1938

Citation: 4, MLR (1999) (HC) 158

Case Year: 1938

Subject: Insurance

Delivery Date: 2018-04-25

Insurance Act, 1938

Section 47B— Interest on claim of insurance—

The court has no option to allow interest on the claim of insurance under section 34 of the Code of Civil Procedure except that under section 47B of the Insurance Act, 1938 as amended by Ordinance No.XXV of 1970. The term "action" means legal action by way of suit or court proceedings as contemplated in clause 8(B) of the Insurance policy document. The period of limitation is six months from date of repudiation within which such action must commence otherwise the right to claim will be barred. The well settled principle of law is that the plaintiff must prove his own case and cannot stand on the weakness of the defence .

Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158.

Intermediate & Secondary Education Ordinance, 1961

Citation: 2, MLR (1997) (AD) 343, 2, MLR (1997) (HC) 260, 1, MLR (1996) (AD) 223, 1, MLR (1996) (AD) 41, 2, MLR (1997) (HC) 205

Case Year: 1961

Subject: Intermediate & Secondary Education

Delivery Date: 2018-04-17

Intermediate & Secondary Education Ordinance, 1961

Section 10—Supervisory authority of the Government over the affairs of the Boards—

Government has the authority under section 10 of the Ordinance to control and supervise the affairs of the Board. It can not directly interfere with the affairs of the non-Government Intermediate College or School. Such interference being without jurisdiction is illegal.

Board of Intermediate and Secondary Education Dhaka represented by the Chairman and others Vs. Md. Faizur Rahman and others. 2, MLR (1997) (AD) 343.

Dissolution of Governing Body of Non-Government Intermediate College- The Board of Intermediate and Secondary Education Dhaka (Governing Body of Non-Government Intermediate Colleges) Regulation, 1977— Regulation 11— Power of the Board to dissolve Governing Body—

Board of Intermediate and Secondary Education is a statutory body created under the Intermediate and Secondary Eduction Board Ordinance, 1961 and under section 39 thereof the Board of Intermediate and Secondary Education Dhaka (Governing Body of Non-Government Intermediate Colleges) Regulations 1977 have been framed. Under Regulation 11 the Board is empowered to dissolve the Governing Body of a Non-Government Intermediate College on grounds of inefficiency, mismanagement, financial irregularity and for similar reasons on the recommendation of the Divisional Commissioner. The Government is not empowered to issue any directive to the Board to dissolve Governing Body of any such college and form Ad-hoc committee. This type of action on the part of the Government is illegal and without jurisdiction. In exceptional circumstance Government can extend the service of a teacher beyond 65 years on a reference made by the Board under Regulation 24.

Faizur Rahman and others Vs. Government of Bangladesh represented by Secretary, Ministry of Education and others. 2, MLR (1997) (HC) 260.

Section 30 (7) (b)— Teacher of Non-Government Secondary School not disqualified for election—

A non-Government Secondary School being not created by any statute or law is not a statutory body and as such a full time teacher of non-Government Secondary School is not disqualified for I being Chairman of Union Parishad.

Mofizul Huq Vs. Mofizur Rahman and others. 1, MLR (1996) (AD) 223.

Section 45- Maintainability of suit—When bar operates against jurisdiction—

Inspite of the bar u/s 45 a suit as a remedy is available if the procedure provided in the Ordinance is not followed by the Board. In such situation a suit is maintainable.

Board of Intermediate & Secondary Education, Rqjshahi Vs. Mirajul Alam. 1, MLR (1996) (AD) 41.

Section 45— Bar to civil court jurisdiction not absolute—

Bar to the jurisdiction of Civil Court is not absolute. Civil Court can entertain suit despite the bar to investigate as to whether the action was taken strictly in accordance with the provisions of law.

Ali Ashraf and another Vs. Md. Seraj master and others. 2, MLR (1997) (HC) 205.

Local Government (Union Parishad) Election Rules, 1973

Citation: 6 BLD (AD) 236, 10 BLD (AD) 231, 18 DLR (SC) 426, 20 DLR (SC) 170, 20 DLR (SC) 292

Case Year: 1973

Subject: Election Rules

Delivery Date: 2018-04-21

Local Government (Union Parishad) Election Rules, 1973

Rules 38 and 39— Recounting of Ballot papers—

Ballot papers have special sanctity and secrecy which should not be infringed unless recounting becomes indispensably necessary to determine the dispute. Though not specifically provided for in the Election Rules the Tribunal can order recounting of ballot papers in exercise of its inherent power when the same becomes indispensably necessary to decide the dispute. Recounting of ballot papers should not be ordered unless there is a prayer for that and when no objection to this effect was raised on the spot before the Presiding Officer.

Md. Shajahan Vs. Md. Sadeq and another 6 BLD (AD) 236.

Section 6(2)(f)— Disqualification for election—

Respondent was a party to a contract with the Upazila Parishad and his pecuniary interest had continued at the time when he was contesting the election and continued after the election as it it transpires that he withdrew some security money after the election although the work was not yet finished. Therefore he comes within the mischief of law as a disqualified person.

Md. Mahmudun Nabi Vs. Ma/izur Rahman Maryu and others. 10 BLD (AD) 231.

Ballot papers— Initial of Presiding officer— not mandatory—

Ballot paper has to bear the official mark and initial of the Presiding officer under section 40 and 45(2). But this provision is directory but not mandatory.

Akbor Ali Vs. Raziur Rahman Khawaja. 18 DLR (SC) 426.

Rejection of ballot papers illegally made-

Certain rejection of ballot papers by the Presiding officer in contravention of the rules calls for interference by the High Court under article 98 of the Constitution.

Akbor Ali Vs. Raziur Rahman Khawaja. 18 DLR (SC) 426.

Election when cannot be setaside—

Election of a returned Candidate can not be set aside where he still commands majority votes after excluding the invalid votes.

Abdur Rouf Majumdar Vs. Election Tribunal. (1968) 20 DLR (SC) 170. Abdus SattarRana Vs. SM Zaidi (1968) 20 DLR (SC) 292.

Local Government (Union Parishad) Ordinance, 1983

Citation: 16 BLD (AD) 121, 14 BLD(HCD)489, 15 BLD (HCD) 190, 18 BLD (HCD)12, 16 BLD(HCD)177, 14 BLD (HCD) 275, 17 BLD (AD) 303, 15 BLD (HCD) 190, 22 BLD (HCD) 625, 19 BLD(AD)125, 20 BLD (AD) 174, 20 BLD(AD) 189, 19 BLD(AD)157, 20 BLD(’HCD)359, 14 BLD (AD) 155, 1

Subject: Local Government (Union Parishad)

Delivery Date: 1970-01-01

Local Government (Union Parishad) Ordinance, 1983

(LI OF 1983)

Section—6(2), 9 and 13(b)

The Oath of Office (Union Parishads) Rules, 1983, Rule—2

If the Deputy Commissioner cannot administer the oath of office as contemplated in sections 6(2), 9 and 13(b) of the Local Government (Union Parishads) Ordinance, 1983 and Rule 2 of the Oath of Office (Union Parishads) Rules, 1983 no legal consequence has been provided for. The failure of the Chairman and Members to take oath can be inferred only when the Deputy Commissioner fixes a date of oath within 30 days of Gazette notification and the Chairman or Members without good cause shown, fail to take oath on the date fixed.

Syed Hedayet Ali Vs. The Chief Election Commissioner and others, 16 BLD (AD) 121

Section—7

On interpretation of Section 7 of the Ordinance read with Section 30(1) (b) of the Intermediate and Secondary Education Ordinance, 1961 it is held that a non-government school is a “local authority” and as such the teacher of a local secondary school is disqualified for election to the Local Union Parishad as Chairman.

Abdul Mazid Vs. Abu Zaffor Mohammad Khalil, 14 BLD(HCD)489

Section—7 (d)

Union Parishad Rules, 1983, Rule—2 (2)

When disqualification incurred by the petitioner under Section 7 (d) of the Local Government (Union Parishads) Ordinance, 1983 is removed it shall be deemed that it was never incurred by him in view of the order of acquittal passed by the High Court Division in his appeal from the judgment and order of conviction under Sections 302/109 of the Penal Code.

Under Rule 2 (2) of the Union Parishad Rules, 1983 (The Oath of Office), the Deputy Commissioner is empowered to give oath on a subsequent date to the office of the Chairman of the Union Parishad if the cause shown for extension of time is just and proper.

Md. S.M. Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190

Ref: Serajul Huq Chowdhury Vs. Nur Ahmed Chowdhury, 19 D.L. R. 766—Cited.

Section—7(2)(g)

Petitioners father Year Mi Munshi took loan from the Bank and died without repayment of the same. There was no intimation by the Bank to the petitioner that he is a loanee of the Bank in respect of loan taken by his father. Under such circumstances, the petitioner cannot be fund to be a defaulter on the ground of the loan earlier taken by his deceased father. Particularly when the said loan is stated to have been adjusted, the Returning Officer acted illegally in rejecting the petitioners nomination paper on the ground of being a defaulter under section 7(2)(g) of the ordinance.

Md. Abdul Jalil Munshi Vs. Returning Officer and others, 18 BLD (HCD)12

Sections—7(2) (g)

Result of participation in election by a Disqualified Candidate

Once it is found that a person stands disqualified under Section 7(2) (g) of the Ordinance at any stage of the election process and he continues to incur such disqualification, his participation in the election renders the entire election result void as the non-participation in the election of such a disqualified candidate might give scope to the general voters to cast their votes differently in favour of other candidates. Under such circumstances, it is to be held that the participation of a disqualified candidate in the election materially affected the result of the election and tht. Election Tribunal should direct for re-election.

Md. Sharfuddin Vs Md. Mofizuddin Sarker and others, 16 BLD(HCD)177

Section—12

Union Parishad Chairman aid Members (Resignation, Removal and Vacation of Office) Rules, 1984, Rules—4

Having regard to the provision of Section 4 of the Union Parishad Chairman and Members (Resignation, Removal and Vacation Office) Rules 1984, the application may submitted by the requisitionists either to the Upa-Zilla Nirbahi Officer or the Deputy Commissioner for convening a special met ing as required by sub-section (2) of Section 12 of the Ordinance. It is thus clear that bold the officers have got jurisdiction and power i imitating the necessary proceedings. In th instant case since a copy of the application for convening a special meeting addressed to the Deputy Commissioner was also sent to th Nirbahi Officer, the latter’s action authorizing the Assistant Commissioner for holding enquiry and conducting the requisition meeting cannot be held to be illegal and without lawful authority.

Alhaj Md. Saidur Rahman Vs. Secretary, Ministry of Local Govt. and Rural Development and others, 14 BLD (HCD) 275.

Ref: Md. Monirul Hoque Vs. Govt. of Bangladesh and others, 41 DLR(AD) 108; B.D. Habibullah Vs. Election Commission and others, 42DLR(AD) 218; Vine Vs. National Dock Habour Board, 1956 Vol. 3 All England Law Reports 439; 1956 A.C. 488; Md. Habibur Rahman and others Vs. Hasan Ali Mondal & others, 34 DLR(AD)158-Cited.

Sections—12(1) and 65(1)

Removal and Suspension of Chairman and Members

On a reference to section 65(1) of the Ordinance the High Court Division found that no proceeding was initiated for the removal of the respondent Chairman under section 12 of the Ordinance nor any criminal case was started against him nor any enquiry was made by the Government wherein he was found to be guilty of any misconduct within the meaning of section 12(1) of the Ordinance. Law requires that before suspending or removing a Chairman or a member the Government must form an opinion on the basis of an enquiry that the delinquent acted in a manner prejudicial to the interest of the Union Parishad or undesirable from the point of view of public interest. Passing of the impugned order of suspension without complying with the strict requirements of law cannot be sustained.

Bangladesh Vs. Md. Lutfur Rahman and others, 17 BLD (AD) 303

Section—13

Union Parishad Rules, 1983, Rule—2 (2)

Vacation of the Office of the Chairman or Member of the Union Parishad

Where a person being in jail custody is elected Chairman of a Union Parishad but on publication of the election result by the Election Commission he could not take oath on the fixed date, his prayer for extension of time for taking oath made to the Deputy Commissioner on the ground that he would be acquitted by the High Court Division in the pending appeal and his order of conviction and sentence under Sections 302/109 of the Penal Code would be set aside is a good cause shown within the meaning of Section 13 (D) of the Ordinance and Rule 2 (2) of Union Parishad Rules, 1983.

Md. S.M. Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190.

Section—20(5)

Under section 20 of the Ordinance only he delimitation officer is responsible for making preliminary and final list of wards. The Thana Nirbahi Officer may give his decision on specific matter to the delimitation officer, following which the delimitation officer may make amendment, alteration or modification in the preliminary list in the manner prescribed in sub-section (5) and only after that he Thana Nirbahi Officer shall publish the final list in the official Gazette.

Md. Serajul Islam . Bangladesh and j at hers, 22 BLD (HCD) 625.

Section—24

Election Commission has got inherent power under the provision of the Union Parishad Election Ordinance, 1983, of superintendence, control and directions which should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections.

Md. Abul Bashar Vs Kamrul Hasan and others, 19 BLD(AD)125

Ref: 45 DLR(AD)53—relied upon.

Section—24

Union Parishads (Election) Pules, 1983

Rule—70

It is the responsibility of the Election Commission to see that the election is conducted justly, honestly and fairly and not to encourage demonstration of muscle power in the election. It is now well-settled that the post-election allegations are to be decided by the Election Tribunal and not by the Election Commission. If there are contemporaneous report or allegations about disturbance, rigging of ballot papers or election not being held justly, honestly and fairly then after being satisfied about the correctness of the report or allegations Election Commission would be justified to cancel the result of the election and direct repoll. But it would not be justified to cancel the result of election held peacefully on the basis of post-election allegations.

Noor Hossain Vs Md. Nazrul Islam and others, 20 BLD (AD) 174.

Section—26

When the election process is still on the High Court Division ought not have interfered with the matter on a disputed and controversial fact and resolved them on mere affidavits.

Al-Haj Jamshed Ali Vs A K M Abdullah and others, 20 BLD(AD) 189

Ref: Nazir Ahmed Vs. Bangladesh Election Commission and ors. 41DLR (AD)87— relied.

Section—29(4)

Code of Civil Procedure, 1908, Section—115(1)

It is well settled that the District Judge acting as an Election Appellate Tribunal under the Ordinance is not a persona designata and that his decision is revisable, under section 115 of the Code of Civil Procedure.

Abdul Mutalib Vs Md. Mostakim Au and others, 19 BLD(AD)157

Section—29(4)

Union Parishads (Election) Rules, 1983, Rule—38

Although no objection regarding counting of invalid votes was raised at the time of counting of votes but omission to raise such objection is no bar to challenge the result of an election in an election petition, as such objection gives rise to an election dispute which is within the purview of the election tribunal to direct recounting of votes.

Md. Mozammel Hoque Vs Mohammad All and ors., 20 BLD(’HCD)359

Ref: Khandker Rezaul Karim Vs. Md Babul Hossain and ors 4BLC(AD)209—relied

Ref: 38 DLR262; 38 DLR4p; 38 DLR435 28 DLR189; 27DLR388; 38DLR172; 28DLR 368; 3IDLR1I9; 27DLR373 48DLR(AD)59; 48DLR(HC) 569—Cited.

Sections—60, 65

There are three alternative circumstances which provide occasions for the Government to exercise the power of suspension of a Chairman : (i) where any proceeding has been initiated for the removal of the Chairman under Section 12 or (2) where any criminal proceeding under any law has been started against such chairman or (3) where on an enquiry by the Government he is found guilty of any misconduct within the meaning of Section 12 (1) . But the exercise of this power is conditional upon a formation of opinion by the Government that the functioning of the person concerned as chairman is prejudicial to the interest of the Union Parishad or undesirable from the view of public interest.

Whenever in any statute the exercise of power by any authority is made conditional upon the formation of opinion of such authority, the formation of a rational opinion is a sine qua non for the exercise of such power. The Government must form the required opinion in terms of the language mentioned in Section 65(1) of the Ordinance after being satisfied that the materials before it have a causal connection with the kind of opinion that is required to be formed.

Bangla4esh Vs. Md. Lokman Patwari and another, 14 BLD (AD) 155.

Section—65(1)

Suspension of Chairman and members

Before the Government can exercise power of suspension under section 65(1) of the Ordinance the delinquent Chairman should be given an opportunity of being heard. The formation of the opinion of the Government in this regard must be on the basis of materials before it for being satisfied that the suspension order is necessary in the interest of the Union Parishad or desirable from the view point of public interest. In the instant case neither of the conditions contemplated under section 65(1) of the Ordinance having been satisfied, the impugned order of suspension must be held to be illegal and without any lawful authority.

Mofazzal Hossain Sarker Vs Bangladesh and others, 17 BLD(HCD)76

Ref: 40 DLR (AD)170; 16 DLR(SC) 722; 46 DLR(AD) 163;—Cited.

Local Government Union Parishad Ordinance, 1983

Citation: 5 MLR (2000) (HC) 137, 1 BLD (AD) 305, 8 BLD (HCD) 241, 9 BLD (AD) 166, 9 BLD (HC) 326, 10 BLD (AD) 21, 10 BLD (AD) 98, 42 DLR (AD) 242, 10 BLD (AD) 132, 10 BLD (HCD) 157, 12 BLD (HCD) 164

Case Year: 1983

Subject: Local Government Union Parishad

Delivery Date: 2018-04-25

Local Government Union

Parishad Ordinance, 1983

(Ord. LI of 1983)

Section 9— Taking of oath by the Chairman and members,—Constitution of Union Parishad— The first meeting held elsewhere is valid—

As soon as the Chairman and other members of the Union Parishad take oath within 30 days of the publication of their names in the official Gazette they enter into office. The first meeting of the Union Parishad held within 30 days of the taking of oath elsewhere other than in the U.P. office and duly communicated to the T.N.O. and Deputy Commissioner is legal and valid.

Fakir Tariqul Islam Vs. Government of Bangladesh. 5 MLR (2000) (HC) 137.

Union Parishad (Election) Rules 1976— Rule 50— Recounting of ballot papers—

Unless a very strong case of improper counting of ballot papers by the Presiding Officer is made out, the Election Tribunal should not direct recounting of ballot papers and interfere with the result of the election.

Manik Chowdhury Vs. Election Tribunal, Faridpur. 1 BLD (AD) 305.

Local Government (Union Parishad) Ordinance, 1983— Section 26— Election— What means—

Election means and includes the whole process starting from the filing of the nomination to the declaration of the result.

Manir Ahmed Khan Vs. Md. Bazlu Mia and others. 8 BLD (HCD) 241.

Union Parishad (Election) Rules 1983- Rule 70— Order of repoll— Power of the Election Commission—

The Election Commission has wide power to hold election freely and fairly. When there are sufficient grounds affecting fair election it is competent to direct repelling. High Court Division misdirected itself in the approach to assess the reason and circumstances which impelled the Commission to pass the impugned order.

Abul Kalam Vs. Abul Kalam and others. 9 BLD (AD) 166.

Locus standi- to challenge election authority—

Election rights are not common law rights. These are creation by special statute which are to be dealt with under the law creating them. A citizen who is not a voter has no role to play in relation to the rights created under the special law and as such he does not possess any legal character to challenge the action or decision of the Election Authority.

Mostafa Kamal Ahmed Vs. B.D. Habibullah and others. 9 BLD (HC) 326.

Pourashava (Election) Rules— Rule 73- Power of Election Commission to direct re-poll—

The Election Commission is empowered to hold free and fair election and as such in appropriate circumstances can direct repolling in Pourashava election. When the order is made reasonably it does not call for any interference.

Golam Murshed Vs. Mustqfizur Rahman and others. 10 BLD (AD) 21.

Union Parishad (Election) Rules 1983— Rules 6 and 29— Change of Polling Station— 15 days notice not necessary—

In order to arrive at a harmonious interpretation repelling to the election as a whole the rules relevant thereto must be read together. It is not mandatory that for the change of a polling station whether in the case of a first station or a repelling intervening period of 15 days in between the date of change and the poll is necessary.

Laizu Begum Vs. Election Commission and others 10 BLD (AD) 98.

Union Parishads (Election) Rules 1983— Rule 39 and 41 — Publication of election result— Incomplete result— validity of—

Rule 41 of the Union Parishads (Election) Rules 1983 provides for publication of results after completion of election of the whole of the Union. The rule does not permit piecemeal notification, one for the Chairman and the other for the members. The impugned notifications being violative of the rules are liable to be set aside.

Syed Alam Mia Vs. Election Commission, 42 DLR (AD) 242.

Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance 1982 (Ord. LIX of 1982)— Section 6(2) (f)--Disqualification for UpazilaElection—

At the time when he contested the election he was a party to the firm having contract with the Upazila Parishad and as such he had pecuniary interest continuing therewith which was well within the mischief of disqualification. Subsequent severance of his connection with the firm is of no avail.

Md. Mahiuddin Nabi Vs. Maftzur Rahmaan Manju and others. 10 BLD (AD) 132.

Local Government (Union Parishads) Ordinance, 1983— Section 26— Publication of election result- Power of Election Commission—

The rule does not contemplate any power of the Election Commission to interfere with the publication of the election result in the official Gazette. Once a notification is published aggrieved candidates acquire a legal right for redressment of their grievance by way of election petition before the Election Tribunal within thirty days of the date of publication of the Gazette notification.

Hazrat Ali Vs. Election Commission and others. 10 BLD (HCD) 157.

Local Government (Union Parishads) Ordinance, 1983— Section 7(2) (g)— Disqualification for election—

The expression "for election or nomination" used in section 7(2) of the Ordinance of 1983 makes the legal position abundantly clear that if the petitioner is a defaulter in repaying any loan to a specified Bank on the date fixed for filing nomination as a Chairman or member, he shall be disqualified for nomination as Chairman or member to contest the said election.

Anwar Ali Khan Vs. Chief Election Comndssioner and others. 12 BLD (HCD) 164.

Local Government (Upazila Parishad & Upazila Administration Reorganisation) Ordinance 1982

Citation: 8 BLD (AD) 170, 10 BLD (AD) 244, 11 BLD (AD) 289, 11 BLD (HCD) 548, 9 BLD (AD) 78, 2 BLD (AD) 56, 7 BLD (HCD) 84, 8 BLD (AD) 170, 9 BLD (HCD) 446

Case Year: 1982

Subject: Local Government (Upazila Parishad & Upazila Administration Reorganisation)

Delivery Date: 2018-04-25

Local Government (Upazila Parishad & Upazila Administration Reorganisation) Ordinance 1982

Section 6(2) (f) — Disqualification for election—

An elected Chairman having pending bills with the Upazila Parishad for some works-done has pecuniary interest in the affairs of the Upazila Parishad and as such he is disqualified.

Md. Mostqfa Hossain Vs. Si/cder Md. Faruque and another. 8 BLD (AD) 170.

Writ jurisdiction in election dispute—Not maintainable—

Unless there is a case of coram non-judice or malice in law High Court Division has no jurisdiction by way of writ to interfere in election dispute.

Zaker Hossain Vs. Abdur Rahim and others. 10 BLD (AD) 244.

Rule 38 and 39— Recounting of ballot papers— Returning officer has no power—

Returning Officer has no jurisdiction to recount ballot papers. When no ground of strong nature warranting recounting of ballot papers, recounting of ballot papers after lapse of long time is not permisible. Law on election designed the scheme and earmarked the jurisdiction of the Election Commission and election functionaries. The authority empowered to decide the question of qualification cr disqualification of a candidate has to perform its duties and against the decision of such authority there is provision of appeal to the specified forum whose decision shall be final. Since there is no provision for further adjudication upon the order of the appellate authority, neither any election functionary nor the Election Commission can question that order

A.F.M. Rashid Vs. The Election Commission and other. 11 BLD (AD) 289.

High Court Division's jurisdiction ousted—

The High Court Division has no jurisdiction to interfere with the result of the election after publication of the same in the official Gazette when the remedy of the aggrieved person lies before the election tribunal.

Salimullah Bahadur Vs. the Election Commission and others. 11 BLD (HCD) 548.

Section 29— Jurisdiction and extent of power of Election Commission—

The Election Commission has wide power including supervision and over see the entire matter to conduct election honestly, freely and fairly in order to sustain democracy. In that view of the matter the Election Commission can review orders passed by any officer involved in the process of election and pass consequential orders including repelling. After completion of the election all election disputes are to be decided by the Election Tribunal.

A.F.M.ShahAlam Vs. Mujibul Haque and others 9 BLD (AD) 78.

Pourashava Election Rules, 1977— Rules 37, 38, 39—

Unless there are contraventions of the rules of election materially affecting the result of the election, such election can not be set aside.

Md. Enayet Ali Vs. (Munsif) Election Tribunal Khulna and others. 2 BLD (AD) 56.

Amendment of election petition—

Election Tribunal is not a civil court exercising all the powers under the Code of Civil Procedure, 1908. Yet it can exercise the power to allow amendment of the election petition within limited jurisdiction but can not give retrospective effect of such amendment from the date of filing the Election Petition (Order 7 rule 17 C.P.C.).

Hosne Zaman Sarker Vs. Election Tribunal and others. 7 BLD (HCD) 84.

Local government (Upazila Parishp.d and Upazial Administration Reorganisation) Ordinance 1982 (LIX of 1982)— Section 20—

A person who had withdrawn his nomination and did not contest election has no interest in the election and as such can not maintain any Election petition.

Md. Mostafa Hossain Vs. Md. Faruque and another. 8 BLD (AD) 170.

Local Government (Union Parishad) Ordinance, 1983, (LI of 1983)— Section 26— Election dispute—

Only after the completion of electic n and publication of result election dispute may be taken to the Election Tribunal ar d nowherelse.

Jalaluddin Ahmed Vs. Matiur Rahmc.T. and others. 9 BLD (HCD) 446.

Martial Law Order 9 of 1982

Citation: 1, MLR (1996) (AD) 161, 1, MLR (1996) (HC) 229, 1, MLR (1996) (HC) 245, 4, MLR (1999) (AD) 16

Case Year: 1982

Subject: Martial Law

Delivery Date: 2018-04-22

Martial Law Order 9 of 1982

Review Forum—

The recommendation of Review Committee or Review Forum is not binding upon the Government. In case of similar recommendation when one is reinstated in service while other of same footing is not, the Government has to show good reason; otherwise such an order is liable to be struck down being discriminatory on unequal treatment.

Bangladesh Vs. A.K.M Al-Mamun and others 1, MLR (1996) (AD) 161.

Recommendations of Review Forum—

When recommendations of Review Committee or Riview Forum are accepted in respect of some officers and rejected in respect of others standing on the same footing on unfounded pre-emptive apprehension without showing cogent reason, such actions of the authority are discriminatory being violative of the equality clause of article 27, 29 and 31 of the Constitution and as such are not sustainable in the eye of law.

Md. Lutful Kabir and others Vs. Government of Bangladesh. 1, MLR (1996) (HC) 229.

Constitution of Review Forum after withdrawal of Martial Law-

The applicants who were dismissed from service under MLO 9 have the legal right to get their cases reviewed by the C.M.L.A and the President. On the withdrawal of Martial Law such right does not extinguish. Government is bound to constitute Review Forum for disposal of the applications pending on the date of withdrawal of Martial Law.

Rafiqul Islam and others Vs. The Principal Secretary President's Secretariat 1, MLR (1996) (HC) 245.

Martial Law Order No. 131 of 1986— Review—

The Martial Law Order No.9 of 1982 provided for review of the order passed thereunder. Subsequently Martial Law Order No. 131 of 1986 provided for review of the pending cases of review by Forum constituted thereunder. Once the order of compulsory retirement has been reviwed by the Chief Martial Law Administrator, there is no scope for review of the same for the second time under Martial Law Order No. 131 of 1986.

Mustafizur Rahman Vs. Bangladesh represented by the Secretary, Ministry of Establishment and others 4, MLR (1999) (AD) 16.

Mohamedan law

Citation: 1 MLR (1996) (AD) 59, 1, MLR (1996) (HC) 328, 2, MLR (1997) (HC) 9, 3, MLR (1998) (HC) 119, 3, MLR (1998) (HC) 190,4, MLR (1999) (AD) 57, (1958) 10, DLR (WP) 59, (1968) 20 DLR (SC) 27, (1969) 21 DLR 213, (1969) PLD (Lahore) 448, (1968) 20 DLR (WP) 176, (

Subject: Mohamedan law

Delivery Date: 2018-04-21

Mohamedan law

Section 245— Partial Preemption-Not permissible—

The fundamental principle of law of preemption established for over a century in this sub-continent is that the pre-emptor cannot break up the bargain of sale by suing only a portion of the property under sale giving rise to right of pre-emption. A suit for pre-emption of land only without the structure thereon is not maintainable.

Attar Mia and other Vs. Mahmuda Khatun Chowdhwy. 1 MLR (1996) (AD) 59.

Revocation of gift-

When a gift is complete by declaration, acceptance and delivery of possession of the subject matter, it cannot be revoked nor it can be avoided nothing short of a decree of a Court.

Md. Samir Alt and others Vs. Md. Attar Rahman Dafader and others. 1, MLR (1996) (HC) 328.

Testamentary power of a Muslim—

There is no limit of testamentary power to make bequeath of his or her property to his or her heirs. Such power is limited to one-third of his or her property in respect of non-heirs.

Khodeja Barm Chowdhwy Vs. Amin Ahmed Chowdhury. 2, MLR (1997) (HC) 9.

Suit for restitution of Conjugal Rights— Cannot be enforced by decree of court—

Muslim marriage is a contract based on social justice and mutual adjustment. When mutual adjustment is lost there is lacking of the very essence of marriage. Suit for restitution of conjugal rights is opposed to the fundamental rights guaranteed in our Constitution and as such the relationship between husband and wife cannot be enforced by decree of the court.

Khodeja Begum and others Vs. Mohammad Sadeq Sarker. 3, MLR (1998) (HC) 119.

D.F. Mollah's Principles of Mohamedan law— 352- Custody of minor child-determination of—

According to Mahamedan law a Muslim mother is entitled to the custody of her minor son till he attains the age of 7 years and a female child till she attains her puberty. While deciding the custody of child the welfare and benefit of the minor must be the paramount consideration. So long a Muslim mother is not disqualified due to subsequent marriage, misconduct, change of her domicile, abjuration of Islam or neglect or cruelty to her child, she cannot be deprived of her natural right to the custody of her child even by any promissory estoppel.

Nargis Sultana vs. Md. Aminul Bor Chowdhury. 3, MLR (1998) (HC) 190.

Mohamedan Law-Divine revelation are not subject to ordinary rules of interpretation—

The Divine revelations are absolute in their perfection and are not like the ordinary legislations or man-made law and as such are not subject to the ordinary rules of interpretation as of Maxwell, Craise or Crawford. The question of maintenance to a divorced wife by the husband during the period of iddat and not beyond that, has been a long settled issue by the Islamic jurists of high authority and the same is of great antiquity followed consistently during the past over fourteen hundred years which can not be given a go-by and left to the rules of ordinary interpretation in the hands of believers and non-believers alike, a proposition which is not only dangerous and fundamentally opposed to the tenets of Islam and the injunctions of the Holy Quran but also morally contemptible. (para 39 per A.T.M. Afzal-C.J) (para 102 per Mustafa Kamal-J.)

Hafezur Rahman (Md) Vs. Shamsun Nahar Begum and another. 4, MLR (1999) (AD) 57.

Conversion— Legal consequence—

When a non-Muslim embraces Islam, he becomes subject to the Muslim Law from the moment of his conversion, Marriage of Muslim woman with non-Muslim is void.

Farooq Leiuers Vs. Adelaide Bridget Mary (1958) 10, DLR (WP) 59.

Marriage among Muslims— a civil contract and not sacrament—

Marriage among Muslims is not a sacrament but in the nature of civil contract, such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam the dinal fittrat confirms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy wed lock.".

Khurshid Bibi Vs. Baboo Mohammad Amtn (1967) 19 DLR (SC) 59.

Marriage solemnised under Muslim Law— Dissoluion of—

Marriage solemnised in England in accordance with the Marriage Act, 1494 which is recognised as valid under the Muslim Law can be terminated by a talaq in Pakistan under the Muslim Family Laws Ordinance.

Mrs. Marina Jatoi Vs. Nuruddin Jatoi (1968) 20 DLR (SC) 27.

Valid marriage— consent of bride essential—

Unless it is established by clear, direct and specific evidence that the woman gave her consent to the marriage anything just short of that will not prove marriage. In the absence of consent of the bride who categorically denied the marriage the conclusion is that there was no valid marriage between the plaintiff and defendant No.l.

Dr. AIM. Abdullah Vs. Rokeya Khatoon. (1969) 21 DLR 213.

Option of puberty (Khairul - Balad)— How to be exercised—

Exercise of the option of puberty must be made before the age of 18 years and before consumation of marriage upon repudiating the marriage which can be proved by the conduct of the woman.

Mst. Sardar Banoo Vs. Satfullah Khan. (1969) PLD (Lahore) 448.

Fasid (invalid), Batil (Void), Saheeh (valid) marriage— What they mean— How concluded—

A male (ahal) possessed of sufficient capacity and a woman (mahal) fit to contract marriage according to Shariah may by proposal and acceptance (ejab and kabul) between the willing parties conclude a valid (Saheeh) marriage.

Iftakhar Nazir Ahmed Khan Vs. Ghulam Kibria. (1968) 20 DLR (WP) 176.

Prohibited marriage—

There are 19 classes of women with whom marriage of a man is prohibited. Any such marriage if contracted will be unlawful. These prohibitions are against (i) exceeding the number of wives (exceeding 4 wives) allowed by law, (ii) conjunction of two sisters, (iii) conjunction of a free woman and a slave girl, (iv) marriage with idolatress; (v) marriage with another's wife; (vi) marriage with another's Moattada (in the Iddat of another) ; (vii) conjunction of two such females as could not have intermarried, if one of them was a male.

Iflakhar Nazir Ahmed Khan Vs. Ghulam Kibria. (1968) 20 DLR (WP) 176.

Marzul Mout- Death- bed Gift by a Muslim— Question of fact and law—

The question whether there existed circumstances proving imminent expectation of death of the executant would be a question of fact but the inference or conclusion drawn from such evidence as to the existence or non existence of the factum of marzul mout or imminent expectation of death would be a question of law which could be raised in appeal provided that the same could be decided upon the facts and materials on record.

Haji Karl Abdur Rahim Vs. Abdur Rahim Gazl (1983) 35 DLR 132.

Legal position of death-bed gift—

The effect of a gift in Marzul Mout is that of a Will. In order to operate as a Will it is necessary that there should be in the first place a completed gift.

Shamshad Ali Shah Vs. Syed Hasan Shah (1964) 16 DLR (SC) 330.

Divorce (Talaq)— Power of husband and that of wife's Talaq-i-Tafweez—

Talaq (Divorce) is the power given to the husband by Islam. The wife is not vested with such power except in the case of tafweez i.e. delegation of power of divorce to the wife by the husband.

Most. Resham Bihi Vs. Muhammad Shaft (1967) 19 DLR (WP) 104.

Talaq-i-Tafweez— When can be exercised—

Wife can exercise her right of talaq-i-tafweez if the husband fails without reasonable excuse, to provide her the maintenance in terms of the Kabinama.

Safura Ktiatoon Vs. Osman Gani MolMi (1957) 9 DLR 455.

Divorce "Khula" and "mubarrat"-Distinction between—

The distinction between a "khula" and a "mubarrat" is that in the former the aversion is on the side of the wife when she desires a separation but in the latter the aversion is mutual and both sides desire separation. In a divorce by "Khula" some consideration must be given by the wife to the husband for her release from the marital tie. It is in effect an offer from the wife for her release on payment of some compensation.

Mst. Ghulam SaJchina Vs. Umar Bdksha. .(1964) 16 DLR (SC) 389.

Dower— Entitlement of wife according to her status—

Wife is entitled to dower even though no dower was fixed, in accordance with her status.

Marina Jatof Vs. Nuruddin Jatoi (1968) 20 DLR (SC) 27.

Prompt dower— To be paid on demand—

The wife under the Mahmmudan Law is entitled to refuse herself to her husband until and unless the prompt dower is paid to her.

Nuruddin Ahmed Vs. Masuda Khanam. (1957) 9 DLR 8. Mohamuda Khatoon Vs. Abu Syed. (1969) 21 DLR 838.

Maintenance- When can be claimed-

Wife can justly claim maintenance from the date of accrual of the cause of action.

Sardar Mohammad Vs. Nasima Bibi. (1967) 19 DLR (WP) 50.

Maintenance during the period of Iddat—

Wife is entitled to maintenance during the period of Iddat after divorce which extends to three months.

Sk. AzmaLullah Vs. Imtiaz Begum (1959) 11 DLR(WP) 74. Safura Khatun Vs. Osman Gani Molla. (1957) 9 DLR 455.

Wife— When not entitled to maintenance—

When it is found that the wife without sufficient cause refused to return to her husbands house, she is not entitled to maintenance.

Mqjidakhatoon Bibi Vs. Paghalu Mohammad (1962) 14 DLR 465.

Legitimacy— Presumption arising out of acknowledgement—

Acknowledgment by itself does not confer status of legitimacy. However acknowledgement raises a presumption of legitimacy, the onus of rebuttal of which is on the person who disputes the legitimacy.

Amir Sultan Vs. Md. K. Alam (1977) 29 DLR (SC) 296.

Gift- (Heba)— Oral gift— Whether valid—

Under the Mohamedan Law oral gift of immovable property, agricultural or non-agricultural is valid. As soon as there is a declaration of gift by the donor and acceptance of the same by the donee and delivery of possession of the property of the gift is made to the donee by the donor, the gift is complete and becomes enforceable in law without the requirement of registered instrument.

Jabid Ali Vs. Abu Shaikh. (1983) 35 DLR (AD) 31.

Requirements of a Hebabil ewaj-Actual delivery of possession is not essential—

In the case of Hebabil-ewaj actual delivery of possession of the property is not necessary. Payment of consideration by the donee to the donor and the bonafide intention of the donor to divest himself in Proesenti of the property and to confer It upon the donee are the necessary ingredients to give effect to a valid transfer under the deed of heba-bil ewaj.

Meher chand Barm Vs. Saltmufiah. (1970) 22 DLR 316.

Wakf— Necessary requirement— Dedication—

One of the requirements of a valid Wakfnama is that the dedication of the property must be in the way of Allah and it must be permanent.

Mofizuddin Howlader Vs. Abdur Rashld and others. (1983) 35 DLR (AD) 36.

Will— Capacity of the testator—

A person who has no sound disposing mind does not possess the capacity to make a Will.

Muhammad Akbar Shah Vs. Mohd. Eusuf Shah. (1964) 16 DLR (SC) 477.

Muslim Family Laws Ordinance, 1961

Muslim Family Laws Ordinance, 1961

Section 6(5)(b)- Offence of secondmarriage without the prior permission of the first wife or the arbitrationcouncil

In the instant case the secondmarriage has not been proved either by oral evidence or by production ofkabin-nama and as such the learned judge of the High Division set aside the impugned judgment of conviction and sentence andacquitted the convict appellant.

Ashrafnl Aiam (Md.) Vs. The State 15MLR (2010) (HC) 256.

Pourashava Ordinance, 1977

Citation: 5 MLR (2000) (AD) 42, 2, MLR (1997) (AD) 354, 4, MLR (1999) (HC) 121, 5 MLR (2000) (AD) 80, 40 DLR (AD) 154

Case Year: 1977

Subject: Pourashava

Delivery Date: 2018-04-24

Pourashava Ordinance, 1977

(Ord. XXVI of 1977)

Section 8- Oath of office to the elected Chairman—

There is nothing wrong in the order given by the High Court Division in a writ petition to the Deputy Commissioner to administer oath of office to the elected Chairman in pursuance of the provision of section 8 of the Ordinance inspite of the election being under challenge.

Machchu Mia and others Vs. Abdul Mannan Barker & others. 5 MLR (2000) (AD) 42.

Section 3—Authority of Government to declare any area as urban area—

The Government has the authority under section 3 to declare any area as urban area on compliance with the requirements of law and any area since declared as such and working for long cannot be interfered with.

Additional Deputy Commissioner (Revenue) Patuakhali Vs. Parimal Chandra Kundo and others. 2, MLR (1997) (AD) 354.

Section 8A— Appointment of Administrator—

Section ISA of Pourashava Ordinance 1977 authorises the appointment of an Administrator of a newly established Pourashava who exercises the power as such till the first meeting of the newly elected Pourashava. Misquoting the law in the order does not invalidate the same if the authority has in fact such power.

Taimur Alam Khondker Advocate and others Vs. Government of Bangladesh and others 4, MLR (1999) (HC) 121.

Section 21— Empowers the Thana Nirbani Officer to make delimitation of Wards in Pourashava—

The Thana Nirbahi Officer is empowered under section 21 of the Pourashava Ordinance 1977 to make delimitation of Wards of Pourashava upon taking into consideration the territorial unity, administrative convenience and distribution of population with not more than 10% variation. All these matters being disputed factual aspects cannot be decided in writ jurisdiction. Chairman being not an aggrieved person has no locus standi to invoke writ jurisdiction against the delimitation.

Khalilur Rahman (Md) Vs. Government of Bangladesh & others. 5 MLR (2000) (AD) 80.

Section 133(2) and 135— Supersesion of Pourashava without opportunity of being heard is illegal—

Pourashava is a corporate body elected by direct adult franchise which cannot be superseded by Government without giving an opportunity of being heard to the elected Chairman and Commissioners. The impugned order of supersesion being violative of the principle of natural justice is illegal and not sustainable in law.

Ministry of Rural Development and Cooperatives Gout of Bangladesh Vs. Md. Afzal 40 DLR (AD) 154.

Pourashava Ordinance, 1977

Citation: 2 MLR (AD) (1997) 355

Case Year: 1977

Subject: Pourashava

Delivery Date: 2018-04-25

Pourashava Ordinance, 1977

Section 3— Power of Government to declare any area as urban area—

Under section 3 of the Pourashava Ordinance, 1977 the Government is empowered to declare any area as urban area on compliance with the requirement of law. Where any such area which was declared as urban area long ago and which has long been functioning as such cannot be interfered with. The writ petition in which the aforesaid declaration has been challenged but the Pourashava concerned has not been made party to the proceeding must fail for non-joinder of necessary party.

Kazi Ashraf Alt Vs. Government of Bangladesh and others 2 MLR (AD) (1997) 355.

Public Servants Retirement Act, 1974

PublicServants Retirement Act [XII of 1974]

Section 2(d)—

Whileinterpreting local authority as mentioned in section 2(d) of Public Servants(Retirement) Act the definition of "local authority" as mentioned insection 2(28) of General Clauses Act will be applicable.

Sayed NurulHossain vs Secretary, Ministry of Industries 51 DLR 226.

Section 5(1)—

The petitioner'scontract service has been terminated in terms of the contract to which he was aparty. Since his appointment has been cancelled in terms of the contract, thewrit jurisdiction is not attracted to his case.

Abdul BariSarker vs Bangladesh 46 DLR (AD) 37.

Section 5(3)—

Since theappointment of the petitioner in the project is in fact re—employment and theapproval of the President having not been obtained before issuing Annexure—A,the appointment of the petitioner as Project Director was illegal.

Sayed NurulHossain vs Secretary, Ministry of Industries 51 DLR 226.

Section 9—

Option toretire—Option for retirement of a public servant is given only to one who hascompleted 25 years of service and to none else. It cannot be read in section 9of the Act that a public servant may exercise his option to retire prior tocompleting 25 years of service. This completion is a condition precedent to optfor retirement.

MofizurRahman vs Bangladesh Parjatan Corporation 44 DLR 436.

Section 9(2)—

If a Governmentservant is retired from service not on consideration of his service record buton consideration of an impartial report submitted by impartial high Governmentofficials after an open enquiry on an incident of an extremely grave nature,then it is for the Government to decide whether to take disciplinaryproceedings against the leading lights of the incident or to retire them in thepublic interest.

Abu Taleb vsGovenment of Bangladesh 47 DLR (AD) 138.

Section 9(2)—

An employeecan be retired from service by the Corporation in exercise of power under Rule5 as well as Regulation 11A(2) and it is not correct to say that Rule 5 doesnot entitle the Corporation to retire its employee from service.

BangladeshBiman Corporation and others vs Md Yousuf Haroon and others 54 DLR (AD) 161.

Section 9(2)—

Retirementwith full pension benefits after completion of 25 years of service is not apunishment nor does it contain any stigma and it is altogether different fromdismissal, removal or compulsory retirement which are different kinds ofpunishment described in Rule 3 of the Government Servants (Discipline andAppeal) Rules.

MA Gafur andanother vs Government of Bangladesh, represented by the Secretary, Ministry ofDefence and another 56 DLR (AD) 205.

Public Service Commission (Consultation) Regulations, 1979

Citation: 5 MLR (2000) (AD) 281, 1, MLR (1996) (AD) 55, 4, MLR (1999) (AD) 422

Case Year: 1979

Subject: Public Service Commission

Delivery Date: 2018-04-24

Public Service Commission

(Consultation) Regulations, 1979

Regulation 6— Consultation with Public Service Commission— Binding effect—

It is mandatory that Public Service Commission shall be consulted before imposing major penalty upon Class I or Class II Government Servant. The opinion of the Public Service Commission is not binding upon the Government which can take decision contrary to such opinion.

Government of Bangladesh Vs. AJM. Salekuzzaman & another. 5 MLR (2000) (AD) 281.

Recovery of outstanding dues—

The Government can always take appropriate proceedings under the Public Demands Recovery Act for realising its outstanding dues from the lessee after the expiry of the terms of lease.

Sirajuddin Ahmed Vs. The Secretary Ministry of Land. 1, MLR (1996) (AD) 55.

Section 53- Application for review— No limitation prescribed—

When circumstance and justification are shown, application under section 53 of the Public Demands Recovery Act, 1913 can not be held barred by limitation even though the same was filed 20 years after because no limitation is prescribed therefor. Public property can not be auction sold for arrear rents of the recorded tenants in Certificate Proceedings.

Sazeda Begum Vs. Member, Bhumi Appeal Board & others. 4, MLR (1999) (AD) 422.

Rajshahi University Act, 1973

Citation: 5 MLR (2000) (HC) 224

Case Year: 1973

Subject: Rajshahi University

Delivery Date: 2018-04-24

Rajshahi University Act, 1973

(Act, No. XXVI of 1978)

Section 16— Publication of result of LL.B. Final Examination on average marking in particular papers—

Rules provide for evaluation of answer scripts of Examination by two Examiners independent of each other. When the Examiners are found grossly negligent in marking the scripts there should be re-examination by another examiner. But where such course is not possible in any exceptional situation average mark may be given in any particular paper and the result published accordingly instead of publishing the result on the basis of marks awarded by single examiner. Court has jurisdiction to give such direction.

Rajshahi University Vs. Munshi Mohiuddin Ahmed. 5 MLR (2000) (HC) 224.

Registration Act, 1908

Citation: 4, MLR (1999) (HC) 301, 5 BLD (AD) 260, 5 BLD (AD) 289, 1 BLD (AD) 86, 10 BLD (AD) 160, 42 DLR (AD) 123, 12 BLD (AD) 177, 37 DLR (AD) 35

Case Year: 1908

Subject: Registration

Delivery Date: 2018-04-24

Registration Act, 1908

(Act, No. XVI of 1908)

Section 47— Time from which registered document operates—Sale deed takes effect from date of execution—

As provided under section 47 of the Registration Act, 1908 a sale deed executed earlier but registered later in point of time will have precedence over sale deed executed later but registered earlier. Plea of earlier execution of bainapatra will be of no avail. The core point is that sale takes effect from the date of execution of sale deed and not from the date of its registration.

Zanir Uddin Ahmed Vs. Md. Ziaul Huq and others. 4, MLR (1999) (HC) 301.

Section 17— Compromise decree passed in a suit is not required to be registered—

In respect of the subject-matter of a suit in which compromise decree is effected by the parties thereto such compromise decree need not be registered under the Registration Act, 1908.

Jonah Ali Sardar and others Vs. Taser Ali Fakir and another. 5 BLD (AD) 260.

Section 28— Parties to the deed since registered can not challenge the validity of the registration—

When a deed duly executed by the vendor and registered at the instance of the vendee, neither party subsequently can challenge the validity of the registration of the deed nor they can allege the same to be fictitious or non-existent or invalid.

Syed Kawsar Ali Vs. Gahar Kazi and others. 5 BLD (AD) 289.

Section 33— Notarial act done in foreign country whether admissible in Bangladesh.

If there is reciprocal arrangement between Bangladesh and that foreign country, in that case a notarial act done in thai foreign country is admissible as valid in Bangladesh as provided in section 14 of the Notaries Ordinance, 1961 and section 33 of the Registration Act. Notarial act done in a foreign country with which there is no such reciprocal arrangement, can be accepted into evidence if it is shown that such act was done by a Notary Public duly authorised by law and on proof of the authentication thereof. A power of attorney authenticated by a Magistrate in India duly authorised by law is admissible in Bangladesh.

Nurunnessa and others Vs. Babar Ali Bepari and others. 1 BLD (AD) 86.

Section 47 and 60— Date of accrual of right of preemption—

The well settled principle of law on this point is that the date of accrual of right of pre-emption is not the date of execution of the sale deed but the date of registration under section 60 of the Registration Act.

Abdul Motalib Vs.Oman Ali Mollah and others. 10 BLD (AD) 160, 42 DLR (AD) 123.

Section 47— Documents executed and registered on different dates— Order of precedence—

When the same vendor executes and registers two sale deeds in respect of the same land in favour of two different purchasers on two different dates, section 47 of the Registration Act, 1908 settles which one will prevail over the other. The sale deed which was executed earlier but registered later in point of time will prevail over the other. The sale deed which w^s executed earlier but registered later in point of time and the criterion in such cases for the purpose of determining when the sale takes effect is not the date of registration but the date of execution of the sale deed itself.

Md. Rajlqul Islam Vs. Mir Abdul Ali 12 BLD (AD) 177.

Section 17- Compromise decree— When to be registered—

Compromise decree in respect of the subject-matter of the suit is not required to be registered. But the comprise decree relating to the transferring of property not involved in the suit will be required to be registered.

Jonah Ali Sarder Vs. Taser AH Fakir. 37 DLR (AD) 35.

Representation of the People Order, 1972

Citation: 4, MLR (1999) (AD) 252

Case Year: 1972

Subject: Representation of the People

Delivery Date: 2018-04-25

Representation of the People Order, 1972

Article 62(3)— Appeal-Code of Civil Procedure, 1908— Order 41 Rule 14(3)— Dispensing with service of notices upon non-contesting parties in appeal— Applicability of—

Appeal is the continuation of Election petition. When provisions of the Code of Civil Procedure, 1908 not inconsistent with the Order of 1972 are made applicable to the proceeding of the Election Petition, the same provisions are equally applicable to the appeal arising out of Election Petition and as such the service of notice in appeal upon the non-contesting parties can be dispensed with under Order 41 rule 14(3) of the Code of Civil Procedure.

Delwar Hossain Saydee (Moulana) Vs. Sudhangsha Shekhar Haider and others— 4, MLR (1999) (AD) 252.

Service Regulation of the Teachers of Non-Government Degree College

Citation: 4, MLR (1999) (HC) 172, 1, MLR (1996) (AD) 152,

Subject: Service Regulation of the Teachers of Non-Government Degree College

Delivery Date: 2018-04-25

Service Regulation of the

Teachers of Non-Government

Degree College

Regulation 16— Suspension— Prior opportunity to show cause—

Although suspension is not punishment and the court is usually reluctant to interfere with order of suspension, when suspension order is passed without any materials constituting any offence and for indefinite period and kept hanging for months together the court can interfere with it. Order rejecting application under Order 7 Rule 11 C.P.C. being perfectly justified does not call for any interference .

Altaf Hossain (Md) Member Governing Body BN Khan Degree College Vs. Md. Abdui Rahim and others. 4, MLR (1999) (HC) 172.

Judiciary has no jurisdiction to dictate any legislation—

The judiciary has got no say in the matter of exercise of legislative powers before the enactment of any law or rule. The court cannot dictate, which it has never done, the legislative organ of the state to enact any particular law or rule as the legislative organ cannot ask the court to render a decision in a case in a particular way. There is an underlying presumption that all governmental actions are done and carried on under the cover and authority of some law unless the contrary is shown. The framing of the Rules by the President under article 133 of the Constitution for governing the appointments etc. of the nationalised college teacher was a requirement under the law. Similarly the decision of the Government to amend rule 3 of 1981 Rules being discriminatory was no less a requirement under the same law. The opinion of the Public Service Commission is not binding upon the Govei nment. Whether there is opinion or no opinion of the P.S.C. the Government is required to follow its own decision otherwise the Government will be accused of arbitrariness amounting to acting contrary to law.

Bangladesh Vs. A.H.M. Amir Hossain. 1, MLR (1996) (AD) 152.

Shilpakala Academy Act, 1989

Citation: 4, MLR (1999) (AD) 281

Case Year: 1989

Subject: Shilpakala Academy

Delivery Date: 2018-04-25

Shilpakala Academy Act, 1989

Section 19— Delegation of powers— Authority of the Director General to dismiss an officer of whom he is not the appointing authority—unlawful— Government Servants (Discipline and Appeal) Rules 1985— Rule 4(6)—

Although the Government Servants (Discipline and Appeal) Rules, 1985 was made applicable to the Employees of the Shilpakala Academy under section 19 of the Act and the Director General was authorised to exercise all the powers under the Rules of 1985, he had no jurisdiction to dismiss the Director of the Academy of whom he was not the appointing authority.

Bangladesh Shilpakala Academy represented by the Director General Vs. Janab Shahidul Islam and another. 4, MLR (1999) (AD) 281.

Shops and Establishments Act, 1965

Citation: 4, MLR (1999) (AD) 161

Case Year: 1965

Subject: Shops and Establishments

Delivery Date: 2018-04-25

Shops and Establishments Act, 1965

(Act No. VII of 1965)

Sections 8 and 9— Shops and Establishments Rules, 1970— Rule 4- Rate of overtime allowance—

Section 8 prescribes the limit of working hours while section 9 determines the rate of overtime allowance at double the rate of ordinary wage excluding bonus beyond 48 working hours or the limit reached by agreement.

General Manager Jamuna Oil Company Ltd. Vs. Chairman, Labour Court Chiltagong and others. 4, MLR (1999) (AD) 161.

Societies Registration Act, 1860

Citation: 22 BLD (AD) 41,20 BLD (HCD) 235.

Subject: Societies Registration

Delivery Date: 1970-01-01

Societies Registration Act, 1860

Sections—2 and 10

A society registered under the Societies Registration Act is to be guided by the Act and its own memorandum of association. While registering the society, the Registrar of Joint Stock Companies did not find anything wrong with the memorandum of association or any of its articles to be against the Act. A charitable society can invest unspent money for getting more money to be spent in charity, as there is no bar in the Act and when its memorandum of association has authorized the society to invest its money not immediately required. (Per Mahmudul Amin Choudhury, CJ)

The investment of BRAC of its money not immediately required in BRAC Bank Ltd. is not an activity as envisaged in section 20. It is an investment under its memorandum of association in order to augment its resources for more efficiently achieving the objects for which it was incorporated. So, no amendment of section 20 is necessary. (Per Mainur Reza Chowdhury. J)

BRAC has been registered under the Act with the object to engage itself in charitable purposes and social welfare activities strictly on non-profit basis. By its investment in BRAC Bank, BRAC has gone for purely commercial activities, which is not permitted by its memorandum. In the event of bankruptcy of BRAC Bank the charity money would be lost if not totally but substantially, and the memorandum of BRAC does not contemplate investment of its assets or money where the loss of such investment is probable. Unless an amendment is made to the Act, it is not permissible for societies to go for commercial undertaking. (per Md. Ruhul Amin, J, dissenting)

BRAC v. Professor Mozaffar Ahmed and others, 22 BLD (AD) 41.

Section—20

Foreign Donation (Voluntary Activities) Ordinance, 1978

Section—2(d)

A scrutiny of section 20 of the Act and section 2(d) of the Ordinance will establish that the purposes for which a society is registered under the Act and assistance is given to an organisation under the Ordinance, are basically non-profit making and voluntary in nature. They can engage in activities with service oriented zeal to the community without entering into purely commercial venture. Allowing BRAC to purchase shares of BRAC Bank will cause a metamorphosis, changing BRAC from a society to a company which is not legally allowed. Not only that, there will also be probability of plethora of laws, like Bankruptcy Act, Income Tax Act, etc. coming into conflict with the Societies Registration Act, resulting in serious legal complications in future.

Unless otherwise authorised, no new territory can be included in section 20 of the Act and section 2(d) of the Ordinance which specifically provide for a society to engage in the fields set out therein and they do not contemplate undertaking of investment of money in purchasing shares in a corporate entity like a banking company. BRAC is neither empowered by any legislation, nor allowed by its Memorandum and Articles of Association, nor authorised by the Societies Registration Act nor by the Foreign Donation (Voluntary Activities) Regulation Ordinance, 1978, to buy shares to own, promote or control a bank.

Professor Muzaffer Ahmed Vs Bangladesh Bank & others, 20 BLD (HCD) 235.

Special Powers Act, 1974

Citation: 3 MLR (AD) (1998)- 169

Case Year: 1974

Subject: Special Powers

Delivery Date: 2018-04-25

Special Powers Act, 1974

Section 3(l)(a)— Preventive detention— There must be genuine ground— Section 2(f)— Prejudicial act defined—

Prejudicial act has been defined by section 2(f) of the Special Powers Act, 1974 as an act which is intended or likely to endanger public safety or maintenance of public order. Unless there are satisfactory materials justifying the ground as enumerated under section 2(1) detention of a citizen under section 3(l)(a) of the Special Powers Act, 1974 can not be sustained in the eye of law curtailing the fundamental rights guaranteed by the Constitution of the People's Republic of Bangladesh. The satisfaction as to the grounds of detention must not be subjective satisfaction merely of mechanical nature. An order of detention which does not strictly conform to the requirements of law is illegal and is liable to be struck down.

Mostafizur Rahman Vs. Bangladesh represented by the Secretary, Ministry of Home Affairs and another 3 MLR (AD) (1998)- 169.

Specific Relief Act, 1877

Citation: 1, MLR (1996) (AD) 423

Case Year: 1877

Subject: Specific Relie

Delivery Date: 2018-04-25

Specific Relief Act, 1877

Section 9— Suit for possession—When maintainbale against a third party-

Defendant having had entered into possession of the suit premises under agreement as monthly tenant and who subsequently handed over possession thereof to a third person in violation of the terms of contract without consent of the owner tentamount to dispossession and as such a suit for recovery of possession under section 9 is maintainable notwithstanding the title suit pending between the parties in which the title can be adjudicated independently.

Abdur Rouf (Mohammad) Vs. Abdul Humid and others— 1, MLR (1996) (AD) 423.

State Acquisition and Tenancy Act, 1950

Citation: 13 MLR (2008) (AD) 33, 11 MLR (2006) (AD) 14, 15 MLR (2010) (AD) 99, 11 MLR (2006) (AD) 274, 11 MLR (2006) (AD) 22, 12 MLR (2007) (AD) 329, 14 MLR (2009) (AD) 21, 14 MLR (2009) (AD) 15, 11 MLR (2006) (AD) 279, 11 MLR (2006) (AD) 420, 12 MLR (2007) (AD) 6

Case Year: 1950

Subject: State Acquisition and Tenancy

Delivery Date: 2018-03-20

State Acquisition and

Tenancy Act, 1950

Section 3(2)— Hat and Bazar land and its periphery are not retainable—

A review of judgment may be made by the Appellate Division only on the grounds enumerated under Order 47 rule 1 of the Code of Civil Procedure, 1908 and in the manner as required by Order 26 of the Supreme Court Rules, 1988. But review of its judgment where the grounds raised were all answered in the judgment in question is not permissible. Hat and Bazar land and the periphery thereof being non-retainable as contemplated under section 3(2) of the State Acquisition and Tenancy Act, 1950 vested in the Government free from all encumbrances after the notification dated 14.4.1956. Nuntl Islam Bhuiyan and another Vs. Government of Bangladesh represented by the Deputy Commissioner, Netrokona and others 13 MLR (2008) (AD) 33.

Section 20(2a)— Fishery other than the tank excavated on land is non-retainable—

Section 20(2a) of the State Acquisition and Tenancy Act, 1950 clearly defines the classification of non-re tamable land. As there is no pleading nor any issue was framed as to the disputed suit tank being non-retainable land of the Ex landlord, the dispute could not be investigated into and as such the decision of the High Court Division is upheld by the apex court. Chairman, Sherpur Pourashava Vs. Md. fahangir Hossain Choiodhury & others 11 MLR (2006) (AD) 14.

Section 87(1)(2)— Acquisition of ownership by the riparian owner to accreted land—

President's Order No. 137 of 1972— Accreted land by recession of river vests in the Government—

Law is well settled by the decision of the Appellate , Division in the case of A.Mannan and others Vs. Kulada Ranjan Mowali reported in 31 DLR (AD) Page 195 that accretions which took place after the publication of notifications under section 3 or 43(2) of the State Acquisition and Tenancy Act but before the part V of the Act coming into force are beyond the scope of sub-sections (1) and (2) of section 87. The apex court held the above decision as undisputed, but the same is not applicable to the present case as the plaintiffs could not establish the ownership of the riparian land and their title thereto on the basis of Kabuliat and rent receipts or other evidence and as such the said accreted land vested in the Government under the President's Order No. 137 of 1972 and the suit is barred under sub-section (3) of section 87 of the SAT Act, 1950. Abdul Qiidus (Moittdvi) being dend his legal heirs Md. Niirnl Abser and others Vs. Government of the People's Republic of Bangladesh, represented by the Deputy Commissioner, Feni 15 MLR (2010) (AD) 99.

Section 90— Pre-emption is not available against a purchaser who is a cosharer of the holding by inheritence—

Law is well settled that pre-emption cannot be claimed against purchase of land of a holding of which the purchaser is already a cosharer by inheritence. Again the land of disputed transfer when reconveyed on the basis of a genuine deed of reconveyance whether before or after the filing of the pre-emption case right of pre-emption is extinguished - Afia Begum and others Vs. Abdul Basel Mia and others 11 MLR (2006) (AD) 274.

Section 92— Debattor property cannot be turned into a secular property—

Hindu Law—

Diety has its perpetual entity and an idol is always a minor and should be represented by shebayet—

A property once made a debattor property and is dedicated to a diety it remains as such and never can be turned into a secular property. Record of rights of the C.S. Khatian have the presumption of correctness. Debattar property cannot be treated as enemy property. Abdul Aziz and another Vs. Hindu Diety Luxmi Gobinda Jew and others 11 MLR (2006) (AD) 22.

Section 95— Limitation of redemption remains unchanged—

The P.O. No. 88 of 1972 has limited the period of usufructuary mortgage to 7 years but the limitation of suit for redemption has not been changed. High Court Division held that the right to redemption acrued after twelve years of the date of mortgage deed and the suit was instituted within the limitation of 60 years which the apex court found perfectly justified. Nasirullah (Md.) and others Vs. Md. Ziauddin Khan and others 12 MLR (2007) (AD) 329.

Section 95— Amendment brought about by the President's Order 88 of 1972 does not affect the right of redemption of mortgage which is already a past and closed transaction—

"The limitation for a suit for redemption is 60 years which has not been changed by the P.O. No. 88 of 1972. Nasirullah (Md.) being dead his heirs Musammat jaigun Bibi and others 14 MLR (2009) (AD) 21.

Section 96— Right of pre-emption cannot be defeated on plea of waiver and acquiescence—

Petitioner as cosharer of the tenancy filed the pre-emption case within time and as such he is entitled to get a decree for pre-emption of the land transferred. His right of pre-emption can not be defeated on plea of waiver and acquiescence when, not specifically taken in defence by the opposite party. Murtoza All (Md.) and another Vs. Renu Bib @ Saifur Nessa and others 14 MLR (2009) (AD) 15.

Section 96— Right of pre-emption is not available when the sale deed is accompanied by a contemporaneous deed of reconveyance—

When on the basis of a genuine deed of reconveyance the disputed land was reconveyed before the filing of the preemption case, the pre-emption case filed thereafter is not maintainable. However right of pre-emption cannot be defeated by creation of an ante-dated deed of reconveyance. Harendra Nath Mahali Vs. Ramesh Chandra Haider and others 11 MLR (2006) (AD) 279.

Section 96— Application for preemption with the statutory deposits shall be made within 4 months from the date of registration of the disputed kabala deed under section 60 of the Registration Act, 1908 or from the date of knowledge thereof—

Limitation of 4 (four) months runs from the date of registration of the sale deed under section 60 of the Registration Act, 1908. When the application for preemption and the statutory deposits with compensation are made within the period of 4 (four) months from the date of registration of the disputed deed, the apex court held the deposit so made valid and the application well within time. Mohiruddin (Md.) Vs. Md. Nazir Hossain Patwary and others 11 MLR (2006) (AD) 420.

Section 96— Right of pre-emption is not available when the disputed transfer is accompanied by a contemporaneous deed of recoveyance—

Section 95A— Transfer of land made subject to reconveyance is usufractuary mortgage—

Law is well settled that right of preemption is not available in respect of a transfer which is made subject to reconveyance by a contemporaneous deed of retransfer executed and registered on the same day and particularly when the reconveyance was effected and possession restored during the pendency of the pre-emption proceedings. Transfer of land made accompanied by a deed of reconveyance shall be deemed to be usufructuary mortgage for a period of 7 years on the expiry of which the transferor shall be entitled to restoration of its possession unless the case is one past and closed transaction on the date of coming into force the P.O. No. 88 of 1972 as contemplated under section 95A of the State Acquisition and Tenancy Act, 1950. Yaor Mia (Md.) & another Vs. Hnji Shah Dhanai AH & others 12 MLR (2007) (AD) 64.

Section 96— Claim for improvement can not be sustained when particulars thereof are not furnished—

Plea for defect of parties can not be agitated after the opposite parties failed to reply to the interrogatories—

Though defect of parties was taken but the opposite parties failed to reply to the interrogatories and as such the plea of defect of parties can not be raised subsequently. Again no claim, for improvement can be entertained when no particulars thereof are furnished. Abdur Rahman Bepnri Vs. Areshed Ali and others 12 MLR (2007) (AD) 120.

Section 96— In order to succeed in a pre-emption case the petitioner must be cosharer of the holding/tenancy—

When the tenancy is split up and are recorded in separate khatian prepared under modified/revisional record of rights, at the time the disputed transfer was made, the petitioner in consequence thereof does no longer remain the cosharer of the tenancy and as such he is not entitled to pre-empt the case land. Master jainitl Abed in Vs. Haji Salanndlah Khan and others 13 MLR (2008) (AD) 143.

Section 96— Right of pre-emption when does not extinguish by waiver, acquiescence and estoppel—

Right of pre-emption accrues on the transfer of the land of a joint tenancy. There can be no waiver, acquiescence or estoppel of the right of pre-emption before the sale/transfer of the disputed kabala land. Deivan Ali (Md.) Vs. Md. Jasinind'diirand others 73 MLR (200S) (AD) 198.

Section 96— Deed of reconveyance created subsequently does not defeat the pre-emption case—

Transfer of the case land during pendency of the pre-emption case is hit by the doctrine of lispendens as contemplated under section 52 of the Transfer of Property Act, 1882. The learned judge of the High Court Division held the subsequent deeds of transfer as sham documents and mere paper transactions which do not stand on the way of allowing the pre-emption. The apex court affirmed the decision of the High Court Division as aforesaid. Nunin Niilmr Begum (Most) Vs. M. Abu Mohammad and others 13 MLR (2008) (AD) 287.

Section 96— Right of pre-emption of a cosharer by inheritance exclude the right of pre-emption of cosharer by purchase— Munshi Mohammad Fazhil Hcique -Vs. Saleh Ahmed and others 13 MLR (2008) (AD) 332.

Section 96— Right of pre-emption can not be defeated merely on the plea of waiver and estoppel—

In the instant case the opposite party raised the plea of'waiver and estoppel. But the opposite party failed to establish that the petitioner negotiated the sale, fixed the price or induced the opposite party to purchase the disputed land. When not so established, the right of pre-emption of the petitioner can not be defeated by a mere plea of waiver and estoppel. Abdur Rahim (Md.) Vs. Md. Aminil Islam and others 15 MLR (2010) (AD) 128.

Section 96— Hat or Bazar land is not subject to pre-emption—

When the Government did not acquire the disputed land by issuing notification under section 3 of the State Acquisition and Tenancy Act, 1950 for the establishment of hat or Bazar and .the disputed land is recorded in the _ S.A. Khatian showing the class thereof as Kanda and when the nature of the said land is shown in the disputed Kabala as the Kanda land, the same is pre-emptable under section 96 of the State Acquisition and Tenancy Act, 1950, provided the petitioner is a co-sharer of the tenancy and. the application is filed within time. Abdul MannaftMd.)- Vs. Md. Sohral All Akand and others 11 MLR (2006) (HO) 414.

Section 96— Right of preemption is extingxrished by waiver, acquiescence and estoppel—

Waiver, Acquiescence and estoppel— Explained—-

On the establishment of the conducts of,the petitioner by evidence to the effect that he waived his right to purchase the disputed kabala land and acquiesced the kabala transfer having been in full knowledge of the, transaction,, his right of preemption in relation thereto is extinguished by waiver, acquiescence and estoppel. Syed Shamsul Alam. Vs. Syed Hamidul Haque and others 12 MLR (2007) (HC) 393.

Section 96 and 89— When notice of the disputed transfer was not served upon the cosharers, the preemption case filed within 4 months of knowledge is quite maintainable—

Grounds which are not taken before the courts below cannot be taken afresh for the first time before the Appellate Division. Pre-emptor petitioner who established his case by cogent and consistent evidence is entitled to get the preemption. Mere claim of the pre-emtee-opposite party to be a cosharer without being substantiated by evidence can not be a ground for disallowing the preemption. Abdul Kashem Vs. Amirirn Nahar being dead her hiers ANM Azizur Rahman and others 11 MLR (2006) (AD) 267.

Section 96(2)— Objection as to non-joinder of necessary parties must be taken at the earliest opportunity—

Subsequent objection after supply of replies to interrogatories cannot be entertained—

Where the petitioner put interrogatories as to the non-joinder of parties in reference to the written objection and pursuant to the replies furnished by the opposite party the petitioner impleaded those left out-persons as parties to the proceeding. The opposite party cannot be allowed subsequently to raise any more objection as to defect of parties even by way of cross-examination of the petitioner during trial. Abdur Rashid Sarker (Md.) & others Vs. Sree Dines Chandra Das and others 11 MLR (2006) (AD) 16.

Section 96(4)— Limitation for becoming a co-applicant and make the statutory deposit—

Code of Civil Procedure, 1908—

Section 148— Has no manner of application in respect of cases under section 96(4) of the SAT Act, 1950—

Section 96(4) of the State Acquisition and Tenancy Act, 1950 provides for special limitation for a person to become co,-applicant for proportionate preemption within 2 (two) months of the service of notice to make application and deposit the proportionate consideration together with compensation within the period as may be directed by the court. Section 148 of the Code of Civil Procedure as to extension of time has no manner of application in such case. Chan Miah (Md.) Vs. Md. Dabirul Islrn @ Maku Miah and others 15 MLR (2010) (AD) 26.

Section 96(9)(c)— Pre-emptor is not mandatorily required by law to file application for formal delivery of possession of the case land after the pre-emption is allowed—

On the pre-emption being allowed the right, title and interest of the case land vest in the pre-emptor. When the pre-emptor is already in the, possession of the case land he is not mandatorily required to file application for formal delivery of possession. After the preemption is allowed the right, title and interest of the pre-emptee in the case land extinguished and he has no subsisting right, title and as such the subsequent transfer of the case land by the pre-emptee is void in the eye of law. Raisuddin being dead his heirs Anoivara Begum Choivdhunj and others Vs. Md. Abdul Munim Choivdhury and another 13 MLR (2008) (AD) 285.

Section 96(10)(a)— Transfer by father to his son is protected under section 96(10)(a) and as such right of preemption in relation thereto is not available—

When the pre-emption case is filed within four months of the date of knowledge, the burden to prove the date of knowledge by reliable and convincing evidence, lies upon the petitioner; otherwise the application is liable to be held barred by limitation. Moreover the disputed transfer being one made by the father to his son is protected under subsection (10)(a) of section 96 against preemption. Ekram Hossain Bhuii/an (Md.) Vs. Matiar Rahman Ehuhjan and others 14 MLR (2009) (HC) 175.

Section 96(10)(b)—Transfer by exchange is exempted from preemption—

Court can investigate as to if the disputed transfer is an exchange or out and out sale. Under Hindu law a reversioner can not transfer his right in the property.

Section 96— Limitation in a preemption case starts from the actual date of knowledge and not from the hearsay date—

Date of knowledge about the disputed transfer shall be the actual date of knowledge derived after obtaining the certified copy of the disputed kabala deed where no notice of the transfer u/s 89 of the SAT Act, 1950 was served upon the petitioner. The limitation runs from the actual confirmed date of knowledge and not from the one heard from some person. Accordingly the learned judge of the High Court Division allowed the pre-emption case and the appeal. Ernerat Hossain (Md.) Vs. Md. Nuntl Bacjue and others 15 MLR (2010) (HC) 207,

Section 96(13)— Does not bar the applicability of Order 9 rule 9 C.P.C in respect of restoration of pre-emption case dismissed for default—-

The Appellate Division held in series of cases that Order 9 rule 13 of the Code of Civil Procedure, 1908 is applicable to an application for setting aside exparte order passed in pre-emption case. Keeping in line with the same view the apex court also held that Order 9 rule 9 C.P.C is equally applicable to the restoration of pre-emption case dismissed for default and section 96(13) of the SAT Act shall not be a bar. Shaficjur Rahman (Mvi. Md.) and another Vs. Ambia Khatoon and others 13 MLR (2008) (AD) 19.

Section 143— Power of Revenue officer to correct record of rights—

State Acquisition and Tenancy Rules, 1955—

Rule 23(4)— Up-dating the record of rights—

The revenue officer is empowered under section 143 of the SAT Act, 1950 read with rule 23(4) of the SAT Rules 1955 to maintain uptodate record of rights upon correction where necessary. He can well cancell mutation on the basis of valid materials wrongly obtained earlier. Bazlur Rahman Sarker Vs. Kamala Kanta Barman and another 12 MLR (2007) (AD) 137.

Section 144— Record of rights of the S.A and R.S Khatian does not create any title—

Kabala deed prevails over the record of rights—

Record of rights prepared in the name of the defendants do not create any title in favour of the defendants. Kabnla deed prevails over the record of rights.

Guru Charan Mondal and others Vs. Srce Bhaba Sindhu Sarker and others 13 MLR (2008) (AD) 6.

Section 144— Remedy against wrong entries in the record of rights-State Acquisition and Tenancy Rules, 1955—

Rule 42A— Correction of wrong entry in record of rights caused by practice of fraud, before final publication—

Remedy against wrong entries in the record of rights after final publication lies in the Civil Court.

Correction of wrong entries of record of rights obtained by practice of fraud can be made by the Settlement officer under rule 42A before final publication thereof.On the acquisition all the rent receiving interest vested in the Government. The manager Bhawal Raj Court of Wards Estate can manage only the retainable land. Bhawal Raj Court of Wards Estate, represented by its Manager Vs.Rasheda Begum and others 14 MLR (2009) (AD) 401.

State Acquisition and Tenancy Act, 1950

State Acquisition and Tenancy Act, 1950

Section 143 and 144 - These two sections operate in differentperspectives so far whether revenue officer is a court or not-

Revenue officer while acting as Settlement officer in preparingthe record of rights under section 144 of the State Acquisition and TenancyAct, 1950 is held to be a revenue court. But the apex court held the revenueofficer while effecting mutation under section 143 of the Act 1950, not arevenue court and as such private complaint regarding forged document and itsuse in the mutation proceeding is not barred under section 476 and 195(1)(c) ofthe Code of Criminal Procedure, 1898.

Sahera Khatun (Most.) Vs. Abdur Rahim Sk and another 12 MLR (2007)(AD) 377.

State Acquisition and Tenancy Act, 1950

Citation: 42 DLR (AD) 1, 42 DLR (AD) 123, 42 DLR (AD) 110, 42 DLR (AD) 189, 1 BLD (AD) 280, 3 BLD (AD) 57, 8 BLD (HCD) 421

Case Year: 1950

Subject: State Acquisition and Tenancy

Delivery Date: 2018-04-25

State Acquisition and Tenancy Act, 1950

(Act No.XXVIII of 1951)

Section 96— Right of pre-emption— Cosharer of holding- Omission to implead cosharer is fatal—

A cosharer of one of the plots of a holding is cosharer of the entire holding. In an application under section 96 of the State Acquisition and Tanancy Act, 1950 impleading of a cosharer whether I ,y inheritence or by purchase is a mandatoiy requirement of law. Omission to implead such a cosharer is fatal defect which renders the pre-emption case liable to be dismissed for defect of party.

Sultan Ahmed Vs. Akhteruzzaman. 42 DLR (AD) 1.

Section 96— Date of accrual of the right of preemption—

The long established principle of law is that the right of preemption accrues from the date of the registration of the deed of transfer under section 60 of the Registration Act, 1908 and not from the date of the execution of the deed.

Abdul Motalib Vs. Iman Ali Mollah. 42 DLR (AD) 123.

Section 96— Amendment of application—

In a preemption case no legal right is accrued to the respondent except the right of rateable preemption. The amendment of the application when allowed it relates back to the date of institution of the preemption case.

Shufha Ramjan Dutta Vs. Alhaj Idris Ali Mia. 42 DLR (AD) 110.

Waiver and estoppel— against right of preemption—

On proof of facts and conduct the right of a premptor may be held to have been waived.

Akhlasur Raman Vs. Sarafullah. 42 DLR (AD) 189.

Section 96 read with section 90— Right of preemption subject to the land holding ceiling—

In order to succeed in a preemption case the petitioner seeking preemption must show that he is not barred under section 90 of the S.A & T Act to get the land under disputed transfer preempted. But a mere omission to make an assertion in his application or adduce evidence to this effect in the absence of any contrary averment from the side of the opposite party will not render the application liable to be dismissed.

Md. Matiar Rahman Vs. Md. Iman Ali Molla and others. 1 BLD (AD) 280.

Section 96— Application filed before registration of deed— Subsequently immaturity cured—

In a case where no objection as to prematurity was raised during trial in a preemption case filed before registration of the deed under section 60 of the Registration Act, the registration being completed during the pendency of the appeal the immaturity was held to have been cured.

Lebu Mia Vs. Canesh Chandra Nath ard others. 3 BLD (AD) 57.

Section 96- One application for preemption of two Kabalas is maintainable—

Law does not require the pre-emptor to file separate application for pre-emption of two Kabalas. One application for preemption of two Kabalas is maintainable.

Jitendra Howladar Vs. Bisheswar Howlader and others. 8 BLD (HCD) 421.

State Acquisition and Tenancy Act, 1950

Citation: 1. MLR (1996) (AD) 165, 4, MLR (1999) (AD) 18

Case Year: 1950

Subject: State Acquisition and Tenancy

Delivery Date: 2018-04-25

State Acquisition and Tenancy Act, 1950

Section 20(2a)-Land or building in hat or Bazar are non-retainable which vest in Government—

Assessment of compensation prior to acquisition are formalities which cannot be decided by invoking writ jurisdiction. Under article 102 of the Constitution writ jurisdiction cannot be invoked to decide contentious matter or where title is disputed.

Bangladesh and another Vs. Money' Kumar Roy Chowdhury 1. MLR (1996) (AD) 165

Section 96 (10)(b)— Transfer by way of exchange not Preemptable—

Transfer by way of exchange is not pre-emptable under section 96(10)(b) of the State Acquisition and Tenancy Act. But when it is established by consistent evidence that although a transfer is shown in the deed as exchange the same is out and out a sale, such transfer is pre-emptable.

Idris Mia (Ma) Vs. Haji Abdul Mannan Sarker and others 4, MLR (1999) (AD) 18.

State Acquisition and Tenancy (Second Amendment) Order 1972

Citation: 1, MLR (1996) (AD) 94

Case Year: 1972

Subject: State Acquisition and Tenancy

Delivery Date: 2018-04-25

State Acquisition and Tenancy

(Second Amendment) Order 1972

(P.O. 88 of 1972)

Abatement of proceedings under Martial Law—

Although with the promulgation of Martial Law all proceedings of writ petitions under Article 102 of the suspended constitution abated, the Martial Law did not put any embargo upon going to civil court for redress of the cause of actions which survived the abatement and move the High Court Division after lifting of the Martial Law and revival of the Constitution.

Anwaruddtn Bepari Vs. Assistant Commissioner (Land) and others 1, MLR (1996) (AD) 94.

Succession Act, 1925

Citation: 15 BLD (AD) 243, 13 BLD (AD) 160, 17 BLD (HCD) 227, 17 BLD (HCD) 167, 15 BLD (HCD) 38, 16 BLD (HCD) 445, 15 BLD (AD) 140, 19 BLD (HCD) 379, 16 BLD(AD) 18, 14 BLD(HCD)228, 15 BLD (AD) 179, 16 BLD (AD) 76

Subject: Succession

Delivery Date: 1970-01-01

SUCCESSION ACT, 1925

Section—23

Consanguinity

It provides that nothing in this part shall apply to intestate or testamentary succession to the property of any Hindu, Muslim, Buddhist, Sikh, Jaina or Parsi.

A sisters son or a cousin sisters son is a relation by consanguinity within three degrees of the donor. Such a transfer is not pre emptible.

Shamsul Islam and others Vs. Badiar Zaman alias Bablu and another, 15 BLD (AD) 243.

Ref: Sale Mohammad Vs. Mosammat Ayesha Khatoon Choudhurani, 20 DLR 376; Tamizunnessa Vs. Umar Ali, 18DLR 572- Cited.

Sêction—211(1)

The executor or administrator of a deceased person, whether is his legal representative for all purposes and all the property of a deceased person vests in him as such.

The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him as such.

Sree Jogendra Nath alias Gobinda Sarker V. Amulya Chandra Sarker & ors., 13 BLD (AD) 160.

Section—213

Section 213 of the Succession Act is a bar to any right claimed by any person under a Will whether as a plaintiff or as a defendant unless probate or letters of administration of the Will has been obtained. In this view of the matter the decision reported in 7 BLD,244 was not relied upon.

Subhra Nandi Majumder Vs Amar Prasad Bhattachariee and others, 17 BLD (HCD) 227.

Ref: 7 BLD 244 -Not relied upon AIR 1916 (PC) 202; A.I.R. 1962(SC) 147—Cited.

Section—275

Conclusiveness of Probate or Letters of Administration

Grant of probate is the proof of the validity of a will. So after granting of probate and after the disposal of the revocation case there is no scope to determine whether the will in question was executed by the testator and it is genuine or not.

Sree Sree Narayan Chakra Bigraha Vs Niranjan Bhattacharjee, 17 BLD (HCD) 167

Section—276

Application for Probate or Letters of Admission

When there is no executor to apply for grant of probate of the will, any surviving legatee is entitled to apply for grant of letters of administration in respect of the properties covered by the will. There is no provision in the Succession Act that a legatee cannot apply for grant letters of administration when there is no executor to apply for grant of probate. The court can grant letters of administration even in respect of part of the property covered by the will.

Moktar Hossain Vs. Budhi Bala Dashi, 15 BLD (HCD) 38.

Section—276

Probate or Letters of Administration

In a suit for probate or letters of administration the Court is to grant probate or letters of administration if it finds that the will was duly executed by the testator and he was in a state of mind competent to exercise his testamentory powers. In this case 3 witnesses were examined by the plaintiff who proved the execution and attestation of the Will. The trial Court without discussing the evidence of the witnesses dismissed the suit by merely comparing the signatures of the executor by naked eyes. The learned Judge ought to have discussed the evidence of the witnesses before coming to any sweeping conclusion. On consideration of the evidence of the witnesses the High Court Division accepted the execution and attestation of the Will and granted probate.

Sree Pratik Bandhu Roy Vs. Sree Alok Bandhu Roy 16 BLD (HCD) 445.

Sections—286, 287 and 288

Reading the provisions of section 286, 287 and 288 of the Succession Act, particularly the explanation of a word “contention” mentioned in section 286 of the Act, it is reasonable to hold that a District Delegate shall cease his hands under section 286 as soon as a contention as to the grant of probate or letters of administration is raised in any case. Even in the case of a non-contentions petition, in case of any doubt, the District Delegate has to seek directions of the District Judge. He cannot, however, reject a non-contentions petition for probate or letters of administration as has been done in the instant case in violation of section 288 of the Succession Act. The caveat or respondent claiming through the testator has no difficulty in contesting the probate proceeding.

Haripada Ghose and another Vs. Gopal Chandra Ghose, 15 BLD (AD) 140.

Ref: Kalpana Das Gupta Vs. Govt. of Bangladesh and another, 40 DLR 373; Charubala Sen Vs. Abul Hashem, 33DLR(AD) 254; Shubra Nandi Majumder Vs. Begum Mahmuda Khatoon, 42 DLR(AD) 133; Samir Kumar Vs. Sachindra Chandra, 20 DLR (1968) 766—Cited.

Sections—295 and 299

Code of Civil Procedure, 1908 , Section—115(1)

In a case for granting probate or letters of administration before the District Judge, the proceeding shall take as nearly as may be, in the form of a regular suit according to the provisions of Code of Civil Procedure. Every order made by the District Judge by virtue of the power shall be subject to appeal to the High Court Division and accordingly the revision is incompetent.

Anuj Chowdhury and others Vs. Sailendra Kishore Chowdhury and others, 19 BLD (HCD) 379.

Ref: AIR 1963 Kerala 188—distinguishable

Section—383

Revocation of certificate

A person seeking revocation of certificate granted by a competent Court must have some interest, immediate or remote, in the property of the testator. In the absence of such a right he is not entitled to seek revocation of a certificate.

Arabinda Sarker Vs. Bimalendu Bhowmick and others, 16 BLD(AD) 18

Ref. A.I.R. 1978 Calcutta 140—Cited.

Section—388 Sub-section (2)

Sub-section 2 of Section 388 of the Succession Act provides that where any Court inferior in grade to a District Judge is vested with the power to exercise the function of a District Judge, such a Court will be deemed to be a District Judge. But proviso to the said Sub-section also provides that from any order passed by such an inferior Court, appeal lies to the District Judge.

Dudu Miah and others Vs. Sikandar Au and others, 14 BLD(HCD)228

SURPLUS PUBLIC SERVANTS ABSORPTION ORDINANCE, 1985

(XXIV OF 1985)

Section—2(e) Surplus Public Servants

According to Section 2(e) of the Ordinance Surplus Public Servant means a public servant whose post is abolished by the Government for the purpose of administrative reorganisation or who, being a servant of the erstwhile Government of Pakistan, joined the Government of Bangladesh on repatriation or escaping or defecting from Pakistan, or any other public servant the responsibility of whose absorption has been taken by the Government.

Lt. Col. (Retd) Nazimuddin Ahmed Vs. Bangladesh and others, 15 BLD (AD) 179.

Sections—5 and 6

Section 5 of the Ordinance laid down the principles in accordance with which a surplus public servant is to be absorbed in any particular post while Section 6 provides that the seniority, pay and pension of a Surplus Public Servant shall, on his absorption in a post, be determined in accordance with the principles laid down by the Government from time to time. Inspite of some amount of dubiousness on the part of the Government as regards the absorption of the respondent, the Appellate Division found it to be just and proper to extend the benefit of doubt in favour of the respondent. A double standard treatment meted out to different employees by the executive Government is deprecated.

The Director General, NSJ Vs. Md. Sultan Ahmed, 16 BLD (AD) 76.

The Ad-hoc Service Counting Seniority Determination Rules, 1990

Citation: 2, MLR(1997) (AD) 129, 1, MLR (1996) (HC) 246, 3, MLR(1998) (AD) 156, 5,MLR(2000) (AD) 307

Case Year: 1990

Subject: The Ad-hoc Service Counting Seniority Determination

Delivery Date: 2018-03-31

The Ad-hoc Service Counting Seniority Determination Rules, 1990

Rule 4(l)(Kha) and 5(2)- Classification of persons is permissible- Promotion cannot be claimed as of right-

Classification of persons is permissible in making the law because all persons cannot be equal having equal merit and characteristics. Rules 4(l)(Kha) and 5(2) in relation to such classification having not been violative of fundamental rights guaranteed in article 27 of the Constitution are not liable to be struckdown. Promotion cannot be claimed as a matter of right. Seniority is an important factor but not the lone criterion for promotion which are earned by efficiency, good conduct, integrity, dynamic personality and sense of value and proportion. When question of facts and statutes are inextricably mixed together the writ jurisdiction of the High Court Division can well be invoked.

Bangladesh represented by the Secretary Ministry of Establishment and others Vs. Md. Azizur Rahman and others- 2, MLR(1997) (AD) 129.

Rule 4(2) (gha)-Counting of ad-hoc service—

The provision of clause (gha) of sub-rule (2) of rule 4 which contains disqualification for counting ad-hoc service for failure of getting recommendation of the Public Service Commission in the first opportunity having the stigma of failure is held to be not discriminatory.

A.B. Mohiuddin Ahmed Vs. Bangladesh and others. 1, MLR (1996) (HC) 246.

Affiliated Non-Government Madrasha Teachers (Terms and Conditions of Service) Regulations 1979— Regulation 13 and 14- Dismissal without enquiry-Not sustainable-

A teacher of an Affiliated Non-Government: Madrasha cannot be dismissed without holding enquiry and giving him notice to show cause. When no inquiry was held and the plaintiff was not given any opportunity of defence, his dismissal from service is illegal and he is entitled to be declared still in service.

A.K.M. Nundlah Vs. Moulvi Md. Shamsul Hoque and others. 3, MLR(1998) (AD) 156.

Affiliated Non-Government College Teachers and Conditions of Sejrvice Rules—

Rule 16— Procedure of removal of teacher— Dhaka University Order 1973— Statute 32(2)(e)— Removal of teacher without inquiry and show cause notice-illegal—

The authority to remove a teacher of Non-Government College lies with the Governing Body of the College. The Chairman of Governing Body alone can not remove a teacher. Removal of a teacher without show-cause and inquiry is illegal. Subsequent approval of the .Governing Body does not make such removal valid.

Sijed Jahangir Hossain Vs. Md. Moijenuddin and others. 5,MLR(2000) (AD) 307.

The Artha Rin Adalat Ain, 1990

Citation: 1, MLR (1996) (AD) 373, 1, MLR (1996) (AD) 293, 1, MLR (1996) (HC) 158, 2, MLR(1997) (AD) 327, 3,MLR(1998) (HC) 165, 3, MLR (1998) (HC) 283, 4, MLR (1999) (HC) 153, 4, MLR (1999) (HC) 268, 5 MLR (AD) 83, 5 MLR (2000) (AD) 83, 5 MLR (2000) (AD) 191, 5 MLR

Case Year: 1990

Subject: The Artha Rin Adalat

Delivery Date: 2018-03-31

The Artha Rin Adalat Ain, 1990

A_© FY Av`vjZ AvBb, 1990

Section 7- Deposit of 50% decretal money mandatory —

Deposit of 50% decretal amount as a pre-condition is mandatory both in the case of an appeal or an application for setting aside an exparte decree.

Md. Nur Islam Vs. Agrani Bank- 1, MLR (1996) (AD) 373.

Section 5(1) and section 27 of P.O. 7 of 1973 operate concurrently —

Suil for realisation of loan money by statutory Financial Institutions shall be instituted in and tried by Artha Rin Adalat. Proceeding under article 27 of the Bangladesh House Building Finance Corporation Order, 1973 (P.O. No. 7 of 1973) for realisation of loan money by the Corporation notwithstanding the enactment of the Artha Rin Adalat Act, 1990 can well be disposed of by the District Judge. Such proceedings not being suits can not be transferred to the Artha Rin Adalat. The Corporation has the option either to institute suit in the Artha Rin Adalat or application under article 27 of the P.O. No. 7 of 1973 both the provisions of law remaining unaffected by the other.

Bangladesh House Building Finance Corporation Vs. Jahan Ara Akhtar and others. 1, MLR (1996) (AD) 293.

Section 5(4)— Rejection of plaint—

An order refusing to reject the plaint under Order 7 rule 11 of the Code of Civil Procedure is covered by section 5(4) of the Artha Rin Adalat Act, 1990. An application under section 115 C.P.C against such order is not maintainable.

Messers Amanat Traders Vs. Artha Rin Adalat, Feni- 1, MLR (1996) (HC) 158.

Section 7(2)— Limitation for appeal-correction of decree—

As provided under section 7(2) any person aggrieved by a decree passed by Artha Rin Adalat may prefer an appeal within 30 days of the decree after making deposit of 50% decretal amount in the trial court. But when such a decree is corrected the limitation starts from the date of correction of the decree and not from the original date of the decree.

ACKO Industries and Cold Storage Ltd. and another Vs. Pubali Bank Ltd. and others- 2, MLR(1997) (AD) 327.

Section 2(Kha) and 5(1)— Only financial institutions can file suit in Artha Rin Adalat for recovery of loan money and none others—

Artha Rin Adalat Ain 1990 provides for special forum for realisation of loan money advanced by financial institution. What constitutes loan is defined under section 2(Kha). Money obtained by fraud by Bank Employee is not loan and as such is not recoverable in the Artha Rin Adalat. Except the financial institution no other institution or private person can institute suit in Artha Rin Adalat for realisation of money. Decree passed by Artha Rin Adalat in suit instituted by any institution other than financial institution is without jurisdiction and is a nullity.

Harunur Rashid (Md) Vs. Subordinate judge (Artha Rin Adalat) Bogra and others- 3,MLR(1998) (HC) 165.

Section 7 and 8— Special limitation provided- Section 5 of Limitation Act, 1908 not applicable—

Appeal against the judgment and decree—Deposit of 50% decretal money mandatory precondition—

Artha Rin Adalat Ain 1990 being the special statute providing special limitation for appeal, section 5 of the Limitation Act, 1908 has no manner of application. Deposit of 50% decretal money with the trial Court is the mandatory precondition of filing an appeal under section 8 of the Ain. High Court Division can not extend the period of limitation.

Habib Bank Ltd. Vs. UAE Bangladesh International Company Ltd. and another- 3, MLR (1998) (HC) 283.

Section 7(2)— Deposit of 50% decretal money before filing appeal—

Deposit of 50% decretal money in the trial court is a condition precedent of filing an appeal within the specified period as provided under section 7(2) of the Artha Rin Adalat AIn. 1990. Bank guarantee in lieu of such deposit can not be construed as compliance with the requirement of law. Artha Rin Adalat Ain 1990 is a special law and the limitation provided therein prevails over the general law of limitation. Section 5 of the Limitation Act, 1908 does not apply to the appeal under the Artha Rin Adalat Ain 1990.

Abdus Saltar of M/s Advance Electronics Vs. International Finance Investment and Commerce Bank Ltd. Motyheel- 4, MLR (1999) (HC) 153.

Section 6(2) and 7(2)(3)— Bank guarantee permissible—

Consequent upon the amendment of section 6(2) and 7(2)(3) of the Artha Rin Adalat Ain, 1990 there has been change in the position of law with regard to the deposit of 50% decretal money as a precondition of preferring appeal before the High Court Division. With a view to resolving the inconsistency between section 6(2) and 7(2) (3) of the Act it has been held that deposit of 50% decretal money either by cash or Bank Guarantee shall be sufficient compliance with the requirement of law as a pre-condition of preferring appeal against the judgment and decree of the Artha Rin Adalat.

Habib Bank Ltd. Vs. Eastern Bank Ltd, and another. 4, MLR (1999) (HC) 268. This decision is superseded by the decision of Appellate Division reported in 5 MLR (AD) 83]

Section 7- Appeal against judgment and decree is circumscribed by two preconditions- One is that appeal must be preferred within 30 days of the date of decree and the other is that 50% of the decretal money must be deposited in the trial court- Bank Guarantee in lieu of cash deposit is not permissible-

As provided under section 7, the Artha Rin Adalat Ain imposes two preconditions of appeal against decree of the Artha Rin Adalat. One of such preconditions is that 50% of the decretal money in cash must be deposited in the trial court and then the appeal must be preferred within 30 days of the date of decree. Deposit by way of Bank guarantee in lieu of cash deposit will not be a compliance with the requirement of law. Period of 30 days limitation also cannot be extended.

Abdus Sattar and others Vs. International Finance Investment and Commerce Bank Ltd. 5 MLR (2000) (AD) 83.

Section 5(4)— Artha Rin Adalat is deemed to be a civil court—

Code of Civil Procedure, 1908—

Order 9 rule 9—Applicability to order of dismissal of Artha Rin Suit for default passed exparte—

Since not inconsistent, Order 9 rule 9 of the Code of Civil Procedure, 1908 is applicable to dismissal of Artha Rin Suit passed exparte for default of the plaintiff.

Islami Bank Bangladesh Ltd. Vs. Alhaj Mid. Shafiuddin Howlader & another. 5 MLR (2000) (AD) 191.

Section 6— No revision lies against order passed by Artha Rin Adalat —

Artha Rin Adalat Ain, 1990 being a special statute bars revision against order passed by the Artha Rin Adalat. In view of express provision of bar contained in section 6, no revision is entertainable even under article 109 of the Constitution.

Hosne Ara Begum and another Vs. Islamt Bank Bangladesh Ltd.- 5 MLR (2000) (AD) 290.

Section 5- Jurisdiction of Artha Rin Adalat to stay suit for analogous/ simultaneous hearing with suit under general law-

Artha Rin Ain, 1990 is a special law with overriding application over general law. Suit instituted in Artha Rin Adalat can not be stayed for analogous or simultaneous hearing with suits instituted under the general law. Interlocutory order passed by Artha Rin Adalat is appealable and as such is not . amenable to the revisional jurisdiction of the High Court Division under section 115 C.P.C. But when any such order is passed beyond jurisdiction, that can well be interfered with by the High Court Division as per the provision under article 109 of the Constitution.

United Commercial Bank Ltd. VS. Messers Freshner Bucket and Redging Industries and another- 5 MLR (HC) 5.

The Bandarban Hill Tracts District Local Government Council (Amendment) Act, 1997

Citation: 2, MLR (1997) (HC) 241

Case Year: 1997

Subject: The Bandarban Hill Tracts

Delivery Date: 2018-04-01

The Bandarban Hill Tracts District Local Government Council (Amendment) Act, 1997

Constitution of Interim Council—

Section 16ka has been inserted in the Act providing for constituting Interim council with nominated members for holding election of the local Government Council within specified period. This being a stop gap-arrangement for holding election provision of section 16ka is not ultra vires the Constitution and does not offend article 59 and 60.

Ziaur Rahman Khan (MP) Vs. Government of Bangladesh represented by Secretary, Ministry of Law, Justice and Parliamentary Affairs and others- 2, MLR (1997) (HC) 241.

THE BANGLADESH RIFLES ORDER, 1972

THE BANGLADESH RIFLES ORDER, 1972

(PRESIDENT'S ORDER NO. 148 OF 1972).[15th December, 1972]

WHEREAS it is expedient to provide for the constitution of Bangladesh Rifles and matters ancillary thereto;

NOW, THEREFORE, in pursuance of the Proclamation of Independence of Bangladesh, read with the Provisional Constitution of Bangladesh Order, 1972, and in exercise of all powers enabling him in that behalf, the President is pleased to make the following Order:-

1. (1) This Order may be called the Bangladesh Rifles Order, 1972.

(2) It extends to the whole of Bangladesh.

(3) It shall come into force at once.

2. (1) In this Order, unless there is anything repugnant in the subject or context,-

1[ (a) “Commanding officer” means an officer commanding a unit or a body of men belonging to the Force;

(b) “Company” means a sub-unit composed of several platoons, forming part of, or attached to the Wing;

(c) “Detachment” means a sub-unit of a company and composed of a body of men operating independently, detached from the Company Headquarters;

2[ (d) “Director-General” means the Director-General of the Force;]

(e) “Force” means the Bangladesh Rifles constituted under this Order;

(f) “officer” means a superior officer or a subordinate officer;

(g) “prescribed” means prescribed by rules made under this Order;

(h) “Rifleman or Signalman” means a member of the Force other than an officer specified in clauses (1) and (2) of Article 6;

(i) “Sector Commander” means an officer of the rank of Deputy Director who commands a sector composed of two to four wings;

3[ (j) “Special Court” means a Court constituted under Article 10AA;]

(k) “Special Summary Court” means a Court consisting of two superior officers and one subordinate officer, constituted by 4[ the Director-General] and presided over by an officer not below the rank of Assistant Director;

(l) “subordinate officer” means an officer specified in Article 5(2);

(m) “superior officer” means an officer specified in Article 5(1);

(n) “unit” means a unit of the Force; and

(o) “wing” means any separate unit of the Force composed of several Companies;

(2) The expressions “reasons to believe”, “criminal force”, “assault”, “fraudulently” and “voluntarily causing hurt” shall have the meanings assigned to them respectively in the Penal Code (Act XLV of 1860).]

3. Every person appointed or enrolled under this Order shall be subject to this Order wherever he may be and shall remain so subject until his discharge in accordance with the provisions of this Order.

4. (1) There shall be raised and maintained in accordance with the provisions of this Order a Force to be called the Bangladesh Rifles.

(2) The Force shall consist of such number and classes of Officers and Riflemen and Signalmen and shall be constituted in such manner as the Government may from time to time direct.

5[ (3) The Force shall be a disciplined force within the meaning of Article 152 of the Constitution of the People's Republic of Bangladesh.]

6[ 5. (1) There shall be 7[ a Director-General] of the Force and may be all or any of the following classes of the superior officers of the Force, namely:-

8[ (a) Director;]

(b) Deputy Director;

(d) Deputy Assistant Director.

(2) There may be all or any of the following classes of sub-ordinate officers of the Force, namely:-

(a) Subedar-Major;

(b) Subedar;

(3) The Government shall appoint the 9[ Director-General] and other superior officers and the 10[ Director-General] shall appoint the subordinate officers in such manner and on such terms and conditions as may be prescribed.

(4) The 11[ Director-General] and the other superior officers shall possess, and may exercise, such powers and authority over the officers sub-ordinate to them and the Rifleman and Signalman for the time being under their command as is provided by or under this Order.]

12[ 6. (1) There may be all or any of the following classes of Riflemen of the Force, namely :-

(a) Havildar-Major;

(b) Havildar and Havildar Assistant;

(d) Lance-Naik and Lance-Naik Assistant;

(e) Buglar and Sepoy and Sepoy Assistant;

(f) Non-combatant (Enrolled).

(2) There may be all or any of the following classes of Signalman of the Force, namely :-

(a) Havildar-Major;

(b) Havildar and Havildar Assistant;

(d) Lance-Naik and Lance-Naik Assistant;

(e) Signalman Sepoy and Sepoy Assistant;

(f) Non-combatant (Enrolled).

(3) The Riflemen or Signalmen shall be enrolled in such manner, for such period and on such terms and conditions as may be prescribed.]

7. The superintendence of the Force shall vest in the Government and the Force shall be administered, commanded and controlled by the 13[ Director-General] in accordance with the provisions of this Order and any rules made thereunder and such orders and instructions as may be made or issued by the Government from time to time.

8. The Force shall be employed for the purpose of the following services namely:-

(a) border protection;

(b) anti-smuggling work; and

9. It shall be the duty of every Officer or Rifleman or Signalman promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist and deliver such persons to the custody of the police.

10. Every persons subject to this Order shall be entitled to receive his discharge from the Force on the expiration of the period for which he was appointed or enrolled and may, before the expiration of that period, be discharged from the Force by the Government, 14[ Director-General] or such other officer and subject to such conditions as may be prescribed.

10A

15[ 10A. (1) A subordinate officer or a Rifleman or a Signalman, who-

(a) begins, excites, causes or joins in any mutiny or sedition or, being present at any mutiny or sedition, does not make his utmost endeavours to suppress it, or, knowing, or having reason to believe in the existence, of any mutiny or sedition, does not, without delay, give information thereof to his Commanding officer or superior officer; or

(b) uses, or attempts to use, criminal force to, or commits an assault on, his superior officer, knowing or having reason to believe him to be such, whether on or off duty; or

(c) abandons or delivers up any garrison, fortress, post or guard or wireless station which is committed to his charge or which it is his duty to defend; or

(d) in the presence of an enemy or any person in arms against whom it is his duty to act, casts away his arms or his ammunition, or intentionally uses words or any other means to induce any other subordinate officer or Rifleman or Signalman to abstain from acting against the enemy, or any such person, or to discourage any such subordinate officer or Rifleman or Signalman from acting against the enemy or such person, or who otherwise misbehaves; or

(e) directly or indirectly holds correspondence with, or communicates intelligence to, or assists, or relieves, any enemy or person in arms against the State, or omits to discover immediately to his Commanding officer or superior officer any such correspondence or communication coming to his knowledge; or

(f) directly or indirectly assists or relieves with money, victuals or ammunition, or knowingly harbours or protects any enemy or person in arms against the State; or

(g) without authority leaves his Commanding officers, or his post or party, to go in search of plunder; or

(h) quits his guard, picquet, party or patrol without being regularly relieved or without leave; or

(i) uses criminal force to, or commits and assault on, any person bringing provisions or other necessaries to camp or quarters, or forces a safeguard, or without authority breaks into any house or any other place for plunder, or plunders, destroys or damages any property of any kind; or

(j) intentionally causes or spreads a false alarm in action, camp, garrison or quarters,

shall, on conviction by the Special Court, be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine which may extend to Taka one hundred.

(2) The Special Court may take cognizance of any offence punishable under this Article either of its own motion or on a complaint by any officer and shall follow such procedures as may be prescribed.

(3) A subordinate officer or a Rifleman or Signalman accused of an offence under this Order shall have the right to conduct his own defence or to have assistance of any officer of the Force or of any legal practitioner of his own choice.

10AA

16[ 10AA.(1) Director-General may, by an order constitute a Special Court consisting of not less than two superior officers and he may preside over it or the said Court may be presided over by a superior officer not below the rank of Director.

(2) Director-General may, by an order reconstitute any of the existing Special Courts, consisting of not less than two superior officers and the reconstituted Court may be presided over by a superior officer not below the rank of Director.

(3) Special Court as mentioned in clause (1) and (2) shall be assisted by the Attorney General or his representative.

(4) A Special Court constituted or reconstituted after the commencement of the Bangladesh Rifles (Amendment) Act, 2010, unless it requires for ensuring justice, shall not recall or re-hear any witness whose evidence has already been recorded, or re-open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached.]

10B

10B. (1) A subordinate officer or a Rifleman or a Signalman who-

(a) is in a state of intoxication when on or detailed for any duty, or on parade, or on the line march; or

(b) strikes, or forces or attempts to force, any sentry; or

(c) being in command of a guard, picquet or patrol, refuses to receive any prisoner duly committed to his charge, or, whether in such command or not, releases any prisoner without proper authority or negligently suffers any prisoner to escape; or

(d) being deputed to any guard, picquet or patrol, quits it without being regularly relieved or without leave; or

(e) being in command of a guard, picquet or patrol, permits gambling or other behaviour prejudicial to good order and discipline; or

(f) being under arrest or in confinement, leaves his arrest or confinement before he is set at liberty by proper authority; or

(g) is grossly insubordinate or insolent to his officer in the execution of his office; or

(h) refuses to superintend or assist in the making of any field work or other military work of any description ordered to be made either in quarters or in the field; or

(i) strikes or otherwise ill-uses a subordinate officer or a Rifleman or a Signalman subordinate to him in rank or position; or

(j) being in command at any post or on the march and receiving a complaint that any one under his command has beaten or otherwise maltreated or oppressed any person, or has committed any riot or trespass, fails, on proof of the truth of the complaint, to have due reparation made as far as possible to the injured person and to report the case to the proper authority; or

(k) designedly or through neglect injures or loses or fraudulently or without due authority disposes of his arms, clothes, tools, equipment, ammunition, accoutrements any means of transport or other necessaries, or any such articles entrusted to him or belonging to any other person; or

(l) malingers, feigns or produces disease or infirmity in himself, or intentionally delays his cure or aggravates his disease or infirmity; or

(m) with intent to render himself or any other person unfit for service, voluntarily causes hurt to himself or any other person; or

(n) commits extortion, or without proper authority exacts from any person carriage, porterage or provisions; or

(o) designedly or through neglect kills, injures, makes away with, ill-treats or loses his horse or any animal used in the public service; or

(p) disobeys the lawful command of his officer; or

(q) plunders, destroys or damages any property of any kind; or

(r) being a sentry, sleeps at his post or quits it without being regularly relieved or without leave; or

(s) deserts or attempts to desert the service or absents himself without leave; or

(t) accepts illegal gratification from any person; or

(u) designedly or through neglect fails to apprehend an offender; or

(v) designedly or through neglect fails to perform his duties; or

(w) neglects to obey Force orders or Wing orders or any other orders or rules made under this Order or commits any act or omission prejudicial to good order and discipline, such act or omission not constituting any offence under the Penal Code or any other law in force in Bangladesh;

shall, on conviction by a Special Summary Court, be punished with rigorous imprisonment for a term which may extend to two years and with fine which may extend to Taka two hundred.

(2) The Special Summary Court may take cognizance of offence punishable under this Article either of its own motion or on complaint by any person and shall follow such procedures as may be prescribed.

(3) A subordinate officer or a Rifleman or a Signalman on conviction by a Special Summary Court under this Article may prefer an appeal to the Sector Commander or to an officer of equivalent rank in the line of command within fifteen days of announcement of the judgement; and a second appeal may be preferred to the 17[ Director-General] within thirty days of disposal of the first appeal.]

11. (1) Subject to such rules as the Government may make under this Order, the 18[ Director-General] may, at any time, award any one or more of the following punishments to any subordinate officer or any Rifleman or Signalman whom he finds to be guilty of disobedient, neglect of duty or remissness in the discharge of any duty, or of rendering himself unfit to discharge his duty, or of other misconduct in his capacity as a subordinate officer or Rifleman or Signalman, namely:-

(a) dismissal from service;

(b) removal from service ;

(d) reduction in rank or grade;

(e) stoppage of promotion;

(f) forfeiture of seniority for not more than one year;

(g) forfeiture of pay and allowances for not exceeding twenty-eight days;

(h) forfeiture of increment in pay;

(i) fine to any amount not exceeding one month's pay;

19[ (j) rigorous imprisonment up to twenty-eight days in unit quarter-guard;]

(k) severe reprimand;

(l) reprimand;

(m) extra guard, picquets, patrol or fatigue;

(n) confinement to lines for a term not exceeding one month with or without drill, extra guard, fatigue or other duty.

(2) The 20[ Director-General] may place under suspension any Subordinate Officer or any Rifleman or Signalman against whom action under clause (i) is required to be taken or against whom any investigation or any enquiry is required to be made.

(3) Notwithstanding anything contained in clause (1), no Subordinate Officer or Rifleman or Signalman shall be awarded any punishment under this Article unless he has been given an opportunity of being heard.

(4) Any subordinate Officer or Rifleman or Signalman aggrieved by any action taken under sub-clause (a) to (i) of clause (1) may prefer an appeal to the prescribed authority in the prescribed manner.

11A

21[ 11A. Any subordinate officer, Rifleman or Signalman sentenced under this Order to imprisonment for a period not exceeding three months shall, when he is also dismissed from the Force, be imprisoned in the nearest or such other Jail as the Government may, by general or special order, direct, but when he is not also dismissed from the Force, he may, if the convicting Court or the Magistrate so directs, be confined in the quarter-guard or such other place as such Court or Magistrate may deem fit.]

12[Omitted]

12. [Omitted by section 8 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974).]

13. Whenever any person subject to this Order deserts, his Commanding Officer shall give written information of the desertion to such civil authorities as in his opinion may be able to afford assistance towards the capture of the deserter and such authorities shall thereupon take steps for apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate and shall deliver the deserter, when apprehended, to the custody of the Force.

14. No person subject to this Order shall be at liberty to resign his appointment or to withdraw himself from all or any of the duties of his appointment, without the sanction of the Commanding Officer with whom he is serving or of some other Officer authorised by the Commanding Officer to grant such sanction.

15[Omitted]

15. [Omitted by section 8 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974).]

22[ 16. (1) The Government may, by order in writing, delegate, in respect of such Superior Officer as it may think fit, its power of 23[ appointment,] posting and transfer to the Director General.

(2) The Director General may, by order in writing, delegate, to such extent and in respect of such Subordinate Officer or such Rifleman or Signalman as he may think fit, the powers conferred upon him by any provision of this Order to any Superior Officer.]

16A

24[ 16A. Notwithstanding anything contained in the Police Act, 1861 (V of 1861), or in any other enactment for the time being in force, the Government may invest the 25[ Director-General] with the powers of a Magistrate First Class for the purpose of enquiring into or trying any offence committed by a subordinate officer, Rifleman or Signalman against the person or property of another subordinate officer, Rifleman or Signalman and punishable under any provision of the Penal Code (Act XLV of 1860), or of any other law in force in Bangladesh.

16B[Omitted]

16B. [Omitted by section 5 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975).]

16C

16C. No suit, prosecution or other legal proceedings shall lie against any superior officer for anything which is done or intended to be done in good faith under this Order. ]

17. (1) The Rifles Act, 1920 (Act II of 1920) is hereby repealed.

(2) All employees of the Organisation set up under the Rifles Act, 1920 (Act II of 1920) who were appointed before the commencement of this Order shall, on such commencement, become employees of the Organisation set up under this Order and shall hold their offices and services in that Organisation on the same terms and conditions as are applicable to them immediately before the commencement of this Order.

(3) All properties, movable and immovable, funds, liabilities and records of the Organisation set up under the Rifles Act, 1920 (Act II of 1920) shall on the commencement of this Order, stand transferred to and vested in the Organisation set up, under this Order.

18. All rules and regulations made under the Rifles Act, 1920 (Act II of 1920), and in force immediately before the repeal thereof shall mutatis mutandis and so far as they are not inconsistent with the provisions of this Order, continue in force until repealed or altered by rules made under this Order.

19. (1) The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Order.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may-

(a) prescribe the period for which and the manner in which persons may be appointed as Officers or enrolled as Riflemen or Signalmen;

(b) prescribe the training of Officers, Riflemen and Signalmen;

(d) prescribe the terms and conditions of service of Officers, Riflemen and Signalmen;

(e) regulate the powers and functions of the 26[ Director-General] and other Officers;

(f) regulate the classes of Officers, Riflemen and Signalmen;

(g) provide for any other matter necessary for the constitution, maintenance, administration, command, control and discipline of the Force and for carrying the provisions of this Order into effect.

1 Sub-clauses (a) to (o) and clause (2) were substituted by section 2 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

2 Clause (d) was substituted by section 2 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

3 Clause(j) was substituted for Clause(j) of Article-2(1) by section 2 of the Bangladesh Rifles (Amendment) Act, 2010(Act No. XLVII of 2010).

4 The words “the Director-General” were substituted for the words “the Director” by section 2 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

5 Clause (3) was added by section 2 of the Bangladesh Rifles (Amendment) Act, 1973 (Act No. XXI of 1973)

6 Article 5 was substituted by section 3 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

7 The words “a Director-General” were substituted for the words “a Director” by section 3 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

8 Sub-clause (a) was substituted by section 3 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

9 The words “Director-General” were substituted for the word “Director” by section 3 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

10 The words “Director-General” were substituted for the word “Director” by section 3 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

11 The words “Director-General” were substituted for the word “Director” by section 3 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

12 Article 6 was substituted by section 4 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

13 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

14 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

15 Articles 10A and 10B were inserted by section 5 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

16 Article 10AA was inserted by section 3 of the Bangladesh Rifles (Amendment) Act, 2010(Act No. XLVII of 2010).

17 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

18 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

19 Paragraph (j) was substituted by section 6 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

20 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

21 Article 11A was inserted by section 7 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

22 Article 16 was substituted by section 2 of the Bangladesh Rifles (Amendment) Act, 1980 (Act No. XXXIII of 1980)

23 The word and comma “appointment,” were inserted by section 2 of the Bangladesh Rifles (Amendment) Ordinance, 1983 (Ordinance No. LXII of 1983)

24 Articles 16A, 16B and 16C were inserted by section 9 of the Bangladesh Rifles (Amendment) Act, 1974 (Act No. XV of 1974)

25 The words “Director-General” were substituted for the word “Director” by section 4 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

26 The words “Director-General” were substituted for the word “Director” by section 6 of the Bangladesh Rifles (Amendment) Act, 1975 (Act No. XL of 1975)

Source : Ministry of Law, Justice and Parliamentary Affairs

The Bangladesh Rifles Order, 1972

Citation: 1, MLR (1'996) (AD) 147, 2, MLR(1997) (HC) 108

Case Year: 1972

Subject: The Bangladesh Rifles

Delivery Date: 2018-04-01

The Bangladesh Rifles Order, 1972

(P.O. 148 of 1972)

Article 11 and 16— Delegation of power- Appeal—

The Director General is empowered by Article 16 to delegate his powers under article 11(1) of the Order. Deputy Director when appointed Sector Commander may in exercise of such delegated power dismiss subordinate officers (J.C.Os). In such case the Director General is competent to dispose of appeal against the order of dismissal passed by Sector Commander.

Bangladesh and others Vs. Naib Subedar. Md. Obaidullah Khan- 1, MLR (1'996) (AD) 147.

(Ordinance 85 of 1976)—Section 8—Discharge-Removal from service- Different procedure to be followed—

Discharge and removal from service are two different terms involving two types of procedure. Penalty of discharge is provided under section 5(c) of the Bangladesh Rifles Order 1972 (P.O. 148 of 1972) in which case the procedure under section 6 of the P.O. 148 of 1972 has to be followed. No reason is required to be shown while passing an order of discharge but in case of removal prescribed procedure of inquiry with opportunity of hearing to the accused employee has to be followed.

Anwar Hossain Sikder (Md.) Vs. Secretary, Ministry of Home Affairs & others. 2, MLR(1997) (HC) 108.

The Bangladesh Rifles (Special Provisions) Ordinance, 1976

Citation: 2, MLR (1997) (HC) 108

Case Year: 1976

Subject: The Bangladesh Rifles (Special Provisions)

Delivery Date: 2018-04-25

The Bangladesh Rifles (Special Provisions) Ordinance, 1976

(Ordinance No. 85 of 1976)

Section 8—Discharge-Removal from service- Different procedure to be followed—

Discharge and removal from service are two different terms involving two types of procedure. Penalty of discharge is provided under section 5(c) of the Bangladesh Rifles Order 1972 (P.O. 148 of 1972) in which case the procedure under section 6 of the P.O. 148 of 1972 has to be followed. No reason is required to be shown while passing an order of discharge but in case of removal prescribed procedure of inquiry with opportunity of personal hearing to the accused employee has to be followed.

Anwar Hossain Sikder (Md.) Vs. Secretary, Ministry of Home Affairs & others 2, MLR (1997) (HC) 108.

The Bangladesh Service Rules

Citation: 2, MLR (1997) (HC) 2, 4, MLR (1999) (AD) 167

Subject: Service Rules

Delivery Date: 2018-04-01

The Bangladesh Service Rules

Rule 21-Lien of Service-Cancellation of—

When an officer appointed on contract is absorbed on regular basis and is then posted elsewhere on deputation on grant of lien such lien cannot be usually cancelled without following relevant rules.

Mr. Azad Rahman Vs. Government of Bangladesh- 2, MLR (1997) (HC) 2.

Rule 9—

Under rule 9 of the BSR Part I date of birth declared and recorded at the time of entry into service cannot be changed subsequently.

Bangladesh Agricultural Development Corporation Vs. Abdul Barek Dewan being dead his heirs Bali Begum and others 4, MLR (1999) (AD) 167.

THE BANGLADESH SHILPA RIN SANGSTHA ORDER, 1972

THE BANGLADESH SHILPA RIN SANGSTHA ORDER, 1972

(PRESIDENT'S ORDER NO. 128 OF 1972).[31st October, 1972]

WHEREAS it is expedient to establish a Sangstha to provide credit facilities and other assistance to industrial concerns and encourage and broaden the base of investment in Bangladesh and to provide for the vesting in the Sangstha of the undertakings of the Pakistan Industrial Credit and Investment Corporation Limited, the Investment Corporation of Bangladesh and the National Investment Trust Limited in Bangladesh and for matters connected therewith or incidental thereto;

1. (1) This Order may be called the Bangladesh Shilpa Rin Sangstha Order, 1972.

(2) It extends to the whole of Bangladesh and also applies to the Business of the Sangstha transacted outside Bangladesh.

(3) It shall come into force at once.

2. In this Order, unless there is anything repugnant in the subject or context,-

(a) “Board” means the Board of Directors of the Sangstha;

(b) “bond” means a bond of any description issued by any institution or by the Government;

(d) “ 1[ company]” means a company as defined in the Companies Act, 1913 (Act VII of 1913), and includes a body corporate established or incorporated under any other law for the time being in force;

(e) “Sangstha” means the Bangladesh Shilpa Rin Sangstha established by this Order;

(f) “Credit and Investment Corporation” means the Pakistan Industrial Credit and Investment Corporation Limited which, after the 16th day of December, 1971, was called the Bangladesh Industrial Credit and Investment Corporation Limited;

(g) “debenture” means debenture issued by any institution in Bangladesh in accordance with the rules for the time being applicable to the issue of debenture and includes debenture stock;

(h) “Deposit account” means an account maintained by the Sangstha of the cash deposits made with it for purposes of investment;

(i) “Director” means a Director of the Sangstha;

(j) “District Judge” includes an Additional District Judge or a Subordinate Judge;

(k) “equity security” means-

(i) any stock or transferable share, preferred or common, or similar security representing ownership;

(ii) any security carrying any warrant or right to purchase or subscribe for such security and any such warrant or right itself; and

(iii) such other security representing ownership as may be prescribed;

(m) “Government” means the Government of the People's Republic of Bangladesh;

(n) “industrial concern” means a concern engaged or to be engaged in such industry or business, or in the manufacture, preservation or processing of such goods, as the Government may, by notification in the official Gazette, specify from time to time, and includes a company;

(o) “industrial concern in the private sector” means an industrial concern which is not an industrial concern in the Public sector;

(p) “industrial concern in the public sector” means an industrial concern at least fifty one per cent shares of which are held by the Government and includes any other industrial concern which the Government may, by notification in the official Gazette, declare to be an industrial concern in the public sector for the purpose of this Order;

(q) “institution” means an organisation established under any law for the time being in force in Bangladesh for the promotion of some public object;

(r) “Investment Corporation” means the Investment Corporation of Bangladesh established under the Investment Corporation Ordinance, 1966 (Ord. No. IV of 1966), read with the Bangladesh (Administration of Financial Institutions) Order, 1972 (A. P. O. No. 3 of 1972), which before the seventh day of January, 1972 was called the Investment Corporation of Pakistan;

(s) “Investment Trust” means the National Investment Trust Limited;

(t) “ 2[ loan]” includes guarantee or indemnity which the Sangstha may give on behalf of an industrial concern and any liability which the Sangstha may incur on behalf of an industrial concern;

(u) “Managing Director” means the Managing Director of the Sangstha;

(v) “prescribed” means prescribed by rules or regulations made under this Order;

(w) “securities” includes any note, stock, bond, debenture, evidence of indebtedness, transferable share, investment contract, certificate of deposit for a security, certificate of interest or participation in any profit sharing agreement; and

(x) “underwriting” means contracting, with or without conditions, to purchase or subscribe for stocks, shares, bonds, debentures or other securities issued by any company with a view to holding, selling or distributing the whole or part thereof.

3. The provisions of this Order and any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

4. (1) On the commencement of this Order, there shall be established a Sangstha to be called the Bangladesh Shilpa Rin Sangstha for the purposes of this Order.

(2) The Sangstha shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Order, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued.

3[ (3) The Sangstha shall be deemed to be a banking company for the purposes of ?????? ???????? ???, ???? (???? ???? ?? ?? ???) and Bangladesh Bank Order, 1972 (P. O. No. 127 of 1972) and any other law for the time being in force relating to banking companies.]

5. (1) The head office of the Sangstha shall be at Dacca.

(2) The Sangstha may establish offices, branches and agencies at such places in or outside Bangladesh as the Board may think fit.

4[ 6. The authorised capital of the Sangstha shall be two thousand million taka to be subscribed by the Government from time to time according to requirement of the Sangstha and in such form and manner as may be prescribed:

Provided that the Government may increase the authorised capital of the Sangstha from time to time.]

7. (1) Subject to rules made under this Order, the general direction and administration of the affairs and business of the Sangstha shall vest in a Board of Directors which may exercise all such powers and do all such acts and things as may be exercised or done by the Sangstha.

5[ (2) Subject to the general policy guidelines as may be given by the Government from time to time, the Board, in discharging its functions, shall act on commercial and banking considerations with due regard to the interests of industry and commerce and to the public interest generally.]

(3) Until the first Board is appointed under Article 8, the Managing Director appointed under the said Article shall exercise all powers, do all acts and things as may be exercised or done by the Board.

8. 6[ (1) The Board shall consist of a Managing Director and eight other Directors to be appointed by the Government.]

(2) No act or proceeding of the Board shall be invalid merely on the ground of existence of any vacancy in, or any defect in the constitution of, the Board.

7[ 9. (1) The Managing Director and other Directors shall hold office for such period and on such terms and conditions as the Government may determine.

(2) The Government may, at any time, terminate the appointment of the Managing Director or any other Director without assigning any reason.

(3) The Managing Director or any other Director may, at any time, resign his office by notice in writing addressed to the Government:

Provided that no resignation shall be effective until it has been accepted by the Government.]

10. (1) The Managing Director shall be the chief executive officer of the Sangstha.

(2) The 8[ Chairman,] Managing Director and other Directors shall exercise such powers, perform such functions and discharge such duties as may be prescribed or assigned to them by the Board.

11. No person shall be or shall continue to be a Director who-

(a) is or at any time has been convicted of an offence which, in the opinion of the Government, is an offence involving moral turpitude; or

(b) is a minor; or

(d) is or at any time has been adjudicated an insolvent or has suspended payment or compounded with his creditors; or

(e) absents himself from three consecutive meetings of the Board without leave of absence granted by the Chairman or, in the case of the Chairman, by the Government; or

(f) has any financial or other interest in any industrial concern financed by the Sangstha which is likely to affect prejudicially his functions as a Director; or

(g) is or becomes a salaried employee of any industrial concern financed by the Sangstha.

11A

9[ 11A. 10[ (1) The Government shall appoint one of the Directors, other than the Managing Director, to be the Chairman of the Board 11[ * * *].]

(2) Subject to his continuing to hold office as a Director, the Chairman shall hold office as Chairman for the term of his office as Director and shall be eligible for re-appointment.

(3) In the event of a casual vacancy in the office of the Chairman a successor shall be appointed by the Government from amongst the Directors for the unexpired term or for the period of absence, as the case may be, but the person so appointed shall not hold office beyond the date of expiry of the term of office of his predecessor.]

12. (1) The meetings of the Board shall be held at such times and at such places as may be prescribed by regulations:

Provided that a meeting may also be otherwise convened by the Chairman when he so thinks fit.

(2) To constitute a quorum at a meeting of the Board the number of Directors present shall be 12[ four 13[ * * *]].

(3) At a meeting of the Board each Director shall have one vote and, in the event of equality of votes, the Chairman shall have a second or casting vote.

(4) No Director shall vote on any matter in which he is directly or indirectly interested.

14[ (5) If for any reason the Chairman is unable to be present at a meeting of the Board, a Director, other than the Managing Director, chosen by the Directors present shall preside over the meeting.]

13. The Board may appoint such committee or committees as it thinks fit to assist it in the efficient discharge of its functions.

14. All acts done by the Chairman or any other Director, acting in good faith, shall, notwithstanding any defect in his appointment or in the procedure, be valid.

15[ 15. (1) Every Director, officer or employee of the Sangstha shall be indemnified by the Sangstha against all losses and expenses incurred by him in the discharge of his duties except such as are caused by his own wilful act or default.

(2) No suit, prosecution or other legal proceedings shall lie against the Chairman, the Managing Director or any other Director or any officer or other employee of the Sangstha or any other person authorised by the Sangstha to discharge any function under this Order for anything done or intended to be done in good faith under this Order.]

16. The Sangstha may carry on, transact or do several kinds of business and acts hereinafter specified, namely:-

(a) assisting in the creation, expansion and modernisation of industrial concerns;

(b) encouraging, sponsoring and facilitating participation of capital, internal as well as external, in industrial concerns and acquisition or ownership of industrial investments, shares and securities;

(c) underwriting, managing and distributing the issue of stocks, shares, bonds, debentures and other securities either directly or through or jointly with any investment or financial institution;

(d) providing finance in the form of long or medium term loans or share participation;

(e) guaranteeing and counter guaranteeing loans, debts, credits, performance of contracts and obligations of any kind;

(f) administering as agent to the Government such loans and in such manner as the Government may direct;

(g) engaging in the business of investing and reinvesting in the owning and holding of securities and of discounting of purchase of shares and investment in such other securities as may be approved by the Board;

(h) 16[ furnishing] managerial, technical and administrative advice to, and assisting in obtaining managerial, technical and administrative services by, any industrial concern or person;

17[ (hh) engaging in research for industrial promotion and providing advisory and consultancy services;]

(i) facilitating investment by selling new floatations of existing or new industrial concerns without underwriting obligations;

(j) merchandising, buying, selling, holding or transferring of shares, stocks debentures, debenture stocks, bonds, obligations and securities;

(k) drawing, making, accepting, endorsing, negotiating, executing, issuing, discounting, buying and selling of bills

of exchange, promissory notes and other negotiable or transferable instruments;

(l) 18[ issuing] or opening of letters of credit;

(m) drawing of bills of exchange and granting of letters of credit payable outside Bangladesh;

(n) lending money with or without security and making advance upon or holding in trust, or otherwise acquiring or 19[ disposing] of, on commission or otherwise, any of the securities or investments;

(o) receiving money on time deposit, loan or otherwise on such terms as may be approved by the Board;

(p) taking over, running and selling of such industrial concerns as have failed to repay in full the loan taken from the Sangstha;

(q) opening and maintaining of Investors' Deposit Accounts and managing investment portfolios on behalf of individuals or institutions;

(r) purchasing and selling shares to the Investors' Deposit Account holders over the counter;

(s) providing professional counsel regarding investments and helping generally in broadening the base of investments and encouraging investment in sound projects, whether by issuing 20[ Mutual Funds or Unit Trusts] or both in or outside Bangladesh or otherwise;

(t) constituting, promoting, issuing, organising, managing and administering Mutual Funds or Unit Trusts of any type or character and acquiring, holding, dealing, selling, paying or disposing of, or dealing in shares, certificates, or securities of, such Funds or Trusts;

(u) being a member of a stock exchange in Bangladesh;

(v) for purposes of, and in matters relating to, its business or object:

(i) purchasing or otherwise acquiring, owning, selling, transferring and exchanging any tangible or intangible, movable or immovable property and any right, title or interest in such property 21[ absolutely,] temporarily or on hire or by hire purchase or on instalment or entering into joint venture or profit sharing arrangements with, or assisting in any way, any industrial concern or person on such terms and conditions as may be approved by the Board;

(ii) accepting and furnishing any undertaking or commercial guarantee for the performance of any obligation or the fulfillment of any contract or the repayment of any money;

(iii) accepting and furnishing any lien, charge, hypothecation or mortgage on any movable or immovable property or any bond or promissory note or bill of exchange;

(iv) entering into agreements and contracts and executing such documents as may be considered necessary or expedient;

22[ (v) appointing attorneys, lawyers, counsels, consultants and agents;]

(vi) subsidising from time to time of the provident fund or other funds created for the benefit of its employees;

(w) receiving, recovering and paying interest, commission, fees and other charges and brokerage in connection with the business of the Sangstha;

(x) selling and realising all property, whether movable or immovable, which may in any way come into possession of the Sangstha in satisfaction or part satisfaction of its claims;

(y) generally doing all such acts and things as may be necessary, incidental, subsidiary or conducive to the transacting of any of the aforesaid business or acts including proceedings in 23[ Courts] of law; and

(z) doing of such other acts and things for the purposes of giving effects to the provisions of this Order.

17. 24[ (1) The business provided for in Article 16 may be transacted with any industrial concern, either in the public or in the private sector, but shall not be transacted with any industrial concern incorporated outside Bangladesh.]

(2) Short term advance and loans for the purposes of working capital of any industrial concern shall not be made of an amount exceeding, at any time, 25[ twenty-five] per cent of the total advances made to such concern except with the approval of the Government.

(3) No guarantee, loan or subscription provided for in Article 16 shall be made which is not secured by pledge, 26[ mortgage,] hypothecation or assignment any property, movable or immovable, to the extent determined by the Board or by a contract to mortgage, hypothecate or assign any property which may be acquired in future with or without financial assistance of the Sangstha.

18[Omitted]

18. [Omitted by section 11 of the Bangladesh Shilpa Rin Sangstha (Amendment) Act, 1987 (Act No. XIX of 1987).]

19. (1) The Sangstha shall not undertake or transact any kind of business other than those authorized by or under this 27[ Order] and, in particular, it shall not discount or buy or advance, lend or open cash credit on the security of, any negotiable instrument of any individual or partnership firm which does not carry on it the several responsibilities of at least two persons or firms not connected with each other in general partnership.

(2) Notwithstanding anything contained in 28[ clause] (1), the Sangstha may grant advances or loans or make ex gratia payments 29[ * * *], to its officers and staff for the purposes of providing amenities and facilities for their betterment.

20. On the commencement of this Order, the undertakings of the Credit and Investment Corporation, the Investment Corporation and the Investment Trust, hereinafter in this Order referred to as the said financial institutions, shall be transferred to, and shall vest in, the Sangstha.

21. (1) The undertaking of any of the said financial institutions shall be deemed to include all assets, rights, powers, authorities and privileges and all property, movable and immovable, cash balances, reserve funds, investments and all other rights and interests in, or arising out of, such property as were immediately before the commencement of this Order in the ownership, possession, power or control of the said financial 30[ institutions] in relation to the undertaking within the territory of Bangladesh or in relation to the business of such undertaking outside Bangladesh, and all books of accounts,

registers, records and all other documents of whatever nature relating thereto and shall, unless the Government otherwise directs, also be deemed to include all borrowings, liabilities and obligations of whatever kind then subsisting of the said financial 31[ institutions] in relation to such undertaking within the territory of Bangladesh.

Explanation - The assets of any of the said financial institutions shall be deemed to include any sum payable by or in respect of any industrial concern or person in Bangladesh on account of any financial assistance taken by or for it or him from any office of any of the said financial institutions in or outside Bangladesh.

(2) If, according to the laws of any country outside Bangladesh, the provisions of this Order by themselves are not effective to transfer or vest any assets situated in that country which form part of the undertaking of any of the said financial institutions to, or in, the Sangstha, the affairs of the said financial 32[ institutions] in relation to such assets shall, on and from the commencement of this Order, stand entrusted to the 33[ Managing Director], for the time being, of the Sangstha, and he may exercise all powers and do all such acts and things as may be exercised or done by the said financial 34[ institutions] for the purpose of effectively transferring such assets.

(3) The 35[ Managing Director] of the Sangstha shall, in exercise of the powers conferred on him by clause (2), take all such steps as may be required by the laws of any such country outside Bangladesh for the purpose of effecting such 36[ transfer or] vesting, and may either himself or through any person authorised by him in this behalf, realise any such assets of the said financial 37[ institutions].

(4) Unless otherwise expressly provided by this Order and unless the Government otherwise directs, all contracts, deeds, bonds. agreements, powers of attorney, grants of legal representation and other instruments of whatever nature subsisting or 38[ having] effect immediately before the commencement of this Order and to which any of the said financial institutions is a party or which are in favour of the said financial 39[ institutions] shall, in so far as they relate to the undertaking of the said financial 40[ institutions], which has vested in the Sangstha under Article 20, be of as full force and effect against or in favour of the Sangstha, and may be enforced or acted upon as fully and effectually as if in the place of the said financial 41[ institutions], the Sangstha had been a party thereto or as if they had been issued in favour of the Sangstha.

(5) Subject to the other provisions of this Order and unless the Governmer otherwise directs, any suit, appeal or other proceeding of whatever nature pending on the date of commencement of this Order by or against any of the said financial institutions in relation to its undertaking which has vested in the Sangstha under Artilce 20 shall be deemed to be suit, appeal or other proceeding pending by or against the Sangstha, and may be continued, prosecuted and enforced by or against the Sangstha.

22. (1) The Sangstha may 42[ , subject to other provisions of this Article,] appoint or employ such persons as it considers necessary for the efficient performance of its functions on such terms and conditions as it may determine.

(2) Every officer or other employee of the said financial institutions in Bangladesh shall become, on the commencement of this Order, an Officer or other employee, as the 43[ case may be], of the Sangstha and shall hold office or service in the Sangstha on the same terms and conditions and with the same rights and privileges as to Provident 44[ Fund, gratuity], pension and other matters as were enjoyed by him immediately before such commencement and shall continue to do so unless and until his employment in the Sangstha is terminated or until his remuneration or terms and conditions are duly altered by the 45[ Sangstha:]

Provided that an officer or other employee may, within such time as may be specified by the Sangstha, exercise his option not to continue in the service of the 46[ Sangstha:]

Provided further that the Government may alter the terms and conditions of service of an officer or employee if such alteration is considered necessary for the sake of uniformity and in the interest of equity in service.

(3) Notwithstanding anything contained in any terms and conditions of service or in any award, settlement or agreement for the time being in force, the Sangstha may, with the prior approval of the Government, alter the remuneration (whether by way of reduction or otherwise) and other terms and conditions of service of any officer or other employee of the Sangstha, and if such alteration is not acceptable to an officer or other employee, the Sangstha may terminate his employment by giving him compensation equivalent to three months' remuneration in case of a permanent officer 47[ or other employee] and one month's remuneration in case of temporary officer 48[ or other employee].

Explanation The compensation to an officer or other employee under clause (3) shall be in addition to any pension, gratuity or other benefit to which the officer or employee may be entitled under the terms and conditions of his service.

(4) If any question arises as to whether or not any person was an officer or other employee of any of the said financial institutions immediately before the commencement of this Order, the question shall be referred to the Government whose decision shall be final and binding on the parties.

(5) The transfer of service of any officer or other employee from any of the said financial institutions to the Sangstha shall not entitle any such officer or other employee to any compensation, other than the compensation mentioned in clause (3), and no such claim shall be entertained by any Court, tribunal or other authority.

49[ * * *]

23. (1) Where any property has vested in the Sangstha under Article 20, every person, in whose possession and custody or under whose control the property may be, shall deliver the property to the Sangstha forthwith.

(2) Any person who, on the commencement of this Order, has in his possession or custody or under his control any books, documents or other papers relating to the undertaking which has vested in the Sangstha under Article 20 shall deliver them to the Sangstha or to such person as the Sangstha may direct.

(3) The Sangstha may take all necessary steps for securing possession of all properties which have vested in the Sangstha under Article 20.

24. The Government shall give compensation to the said financial institutions for such of their undertakings transferred to the Sangstha under Article 20 as have not already vested in the Government by or under any law, and such compensation shall be determined and distributed among the shareholders of the said financial institutions in such manner as may be prescribed by rules made under this Order:

Provided that the total compensation payable to any of the said financial institutions under this Article shall not exceed the total paid up value of the shares held by the shareholders in Bangladesh among whom such compensation is to be distributed.

25. The Sangstha shall, by such date in each year as may be prescribed, submit to the Government for approval a statement, to be called the annual budget statement, in the prescribed form for every financial year showing the estimated receipts and expenditure during that financial year.

50[ 26. (1) The Sangstha may issue and sell bonds and debentures carrying interest at such rates as the Board may determine.

(2) Notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947 (VII of 1947), or any other law for the time being in force, the Sangstha may, for the purpose of granting loans and advances to industrial concerns in foreign currency, borrow such currency from the Government or from any bank or other financial institution in Bangladesh or from any foreign Government or foreign bank or other financial institution, and may pledge, mortgage, hypothecate or assign to such Government, bank or financial institution all or any part of the security taken by the Sangstha for the loans granted in foreign currency.

(3) The Government may, if it considers it expedient, guarantee the repayment of principal and payment of interest in respect of the bonds and debentures issued, and the borrowing made, by the Sangstha under this Article on such terms and conditions as may be agreed upon between the Government and the Sangstha.]

27. (1) For the purpose of transacting any business under this Order with any industrial concern or person the Sangstha may impose such conditions as it may consider necessary or expedient for protecting its interest and securing that its guarantee, 51[ underwriting], loan, subscription or other aid is put to such use by the industrial concern or person as the Sangstha has agreed to.

(2) Any condition imposed on an industrial concern or person under clause (1) shall be valid and shall be enforceable against such concern or person.

28. 52[ (1)] All loans granted to an industrial concern in foreign currency shall be repaid in accordance with such terms and conditions as may be determined by the Board either-

(i) in the currency in which they were granted; or

53[ (ii) in Bangladesh currency at the rate of exchange prevailing on the date of payment or at such other rate as the Government may, by order, determine from time to time in this behalf.]

54[ (2) Any loss incurred by, or profit accrued to, the Sangstha in connection with any foreign currency borrowed by it under clause (2) of Article 26 due to any fluctuation in any exchange rate shall be on the account of the recipient from the Sangstha of the foreign currency borrowed by it.

(3) The Sangstha may adopt an insurance policy to cover the risk of loss due to fluctuation in the exchange rate of the foreign currency borrowed by it under clause (2) of Article 26 and the recipient from the Sangstha of such foreign currency shall pay such premium for the insurance policy as the Sangstha may determine.]

29. (1) The Sangstha shall maintain proper accounts and prepare annual statement of accounts including the profit and loss account and balance sheet, and shall comply in respect of such accounts with such general direction as may be issued by the Government from time to time.

55[ (2) The accounts of the Sangstha shall be audited by not less than two auditors who shall be chartered accountants within the meaning of the Bangladesh Chartered Accountants Order, 1973 (P.O. No. 2 of 1973), and who shall be appointed by the Sangstha 56[ * * *]:

Provided that the Government may, if it deems it expedient, appoint special auditors for undertaking special audit of the accounts of the Sangstha.]

(3) Every auditor appointed under clause (2) shall be given a copy of the annual balance sheet and other accounts of the Sangstha and shall examine 57[ it,] together with the accounts and vouchers 58[ relating] thereto, and shall have a list delivered to him of all books kept by the Sangstha, and shall at all reasonable times have access to books, accounts and other documents of the Sangstha, and may, in relation to such accounts, examine any Director or 59[ officer] of the Sangstha.

(4) The auditors shall report to the 60[ Government] upon the annual balance sheet and accounts, and in their report they shall state whether, in their opinion, the balance sheet contains all necessary particulars and is properly drawn up so as to exhibit a true and correct view of the state of affairs of the Sangstha and, in case they have called for any explanation or information from the Board, whether it has been given and whether it is satisfactory.

(5) The Government may, at any time, issue directions to the auditors requiring them to report to it upon the adequacy of measures taken by the Sangstha for the protection of the interest of the 61[ Government] and of the 62[ creditors] of the Sangstha or upon the sufficiency of the procedure in auditing the affairs in the Sangstha, and may, at any time, enlarge or extend the scope of the audit or direct that different procedure in audit shall be adopted or that any other examination shall be made by the auditors or any other person or persons if, in its opinion, the interest of the 63[ Government] so reqires.

30. (1) The Sangstha shall furnish to the Government such returns, reports and statements as the Government may from time to time require.

(2) The Sangstha shall, as soon as possible after the end of every financial year furnish to the Government a statement of accounts audited by the auditors under Article 29 together with an annual report on the working of the Sangstha during the year.

(3) The copies of the audited accounts and annual report received by the Government under clause (2) shall be published in the official Gazette and shall be laid before the Parliament.

31. (1) The Sangstha shall establish a reserve fund to which shall be credited such amount out of its net annual profit as the Board may determine.

(2) After deducting the amount under clause (1) and making provision for bad and doubtful debts, depreciation of assets and such other matters as are usually provided for by bankers or are considered expedient in the interest of the Sangstha, any surplus remaining thereafter shall be 64[ declared as dividends].

31A

65[ 31A. The Sangstha may establish a fund to be called the Special Assistance Fund for providing concessional loans and advances to persons dealing with inventions and innovations in such sector as the Sangstha may decide in this behalf.]

32. Notwithstanding any agreement to the contrary, the Sangstha may, by notice, require any industrial concern to which it has granted any loan or any person who is liable for payment of such loan forthwith to repay the loan in full, if-

(a) 66[ it] appears to the Sangstha that information, false or misleading in any material particular, has been given in the application for the loan; or

(b) the industrial concern has failed to comply with the terms of any agreement with the Sangstha in the matter of the loan; or

(c) there is a reasonable apprehension that the industrial concern is unable to pay its debts or may go into liquidation; or

(d) the property pledged, mortgaged, hypothecated or assigned to the Sangstha as security for the loan, is not insured or kept insured by the industrial concern to the satisfaction of the Sangstha or has, in the opinion of the Sangstha, depreciated in value by more than twenty percent and further security to the satisfaction of the Sangstha is not given; or

(e) without the permission of the Sangstha, machinery or other equipment or any asset is removed from the premises of the industrial concern without being replaced; or

(f) without permission of the Sangstha, any property of the industrial concern is sold, transferred, exchanged or alienated in any manner; or

(g) without prior approval of the Sangstha in writing, the management of the industrial concern has been changed or altered; or

(h) without any satisfactory reason, the industrial concern or the person responsible for payment of the loans has failed to attend or reply to the enquiries made by the Sangstha or failed to supply the papers or 67[ documents] asked for by the Sangstha; or

(i) for any other reason, it is necessary, in the opinion of the Sangstha, to protect the interest of the Sangstha or of the industrial concern.

32A[Omitted]

32A. [Omitted by section 9 of the Bangladesh Shilpa Rin Sangstha (Amendment) Act, 1993 (Act No. IV of 1993).]

33. 68[ (1) Where] the Sangstha becomes entitled to require the immediate payment of any loan before the due date under Article 32 or by reason of the breach of any condition of any agreement between the Sangstha and an industrial concern to which any loan has been granted or any person liable for payment of that loan, or where an industrial concern to which any loan has been granted or any person liable for payment of that loan fails to repay the loan by the due date or in compliance with the notice under Article 32, an officer of the Sangstha generally or specially authorised by the Board in this behalf, may apply to the District Judge within the local limits of whose jurisdiction the industrial concern carries on the whole or a substantial part of its business, or the office or Branch of the Sangstha from which the loan was disbursed is situated, for one or more of the following reliefs, namely:-

(a) an order for the sale of the property pledged, mortgaged, hypothecated or assigned to the Sangstha as security for the loan or any other property of the industrial concern or of any person liable for payment of the loan or for payment of other sum relating thereto; or

(b) transfer of the management and administration, including the authority to operate the bank accounts, of the industrial concern to the Sangstha or to a person specified by the Sangstha; or

(c) an order for injunction ad interim where there is apprehension that the machinery or equipment or other assets may be removed from the premises of the industrial concern without the permission of the Sangstha or the properties of any other person who is liable for payment of the loan or any other sum relating thereto may be transferred, removed or destroyed; or

(d) an order for payment of the loan or any other sum relating thereto.

(2) An application under clause (1) shall state the nature and extent of the liability of the industrial concern to the Sangstha, the ground on which it is made and such other particulars as the Sangstha may consider necessary.

(3) When the application is for the relief mentioned in sub clause (a) or sub clause (c) of clause (1), the District Judge shall pass an order ad interim, attaching the property referred to in sub clause (a) as aforesaid or such other property of the industrial concern or of the persons liable for payment of the loan or of both as is likely in his estimation to fetch, on being sold, an amount equivalent to the outstanding liability of the industrial concern to the Sangstha 69[ , together] with the costs of the proceedings taken under this Article, with or without an order of injunction ad interim restraining the industrial concern from transferring or removing any machinery or equipment or any other assets without the consent of the Sangstha or restraining the persons from transferring, removing or destroying the same.

(4) Where the application is for the relief mentioned in sub clause (b) of clause (1), the District Judge shall pass an order for injunction ad interim restraining the industrial concern from transferring or removing its machinery, equipment or any other assets and sha

The Bangladesh Shipping Corporation (Service) Regulations, 1981

Citation: 1, MLR (1996) (AD) 283

Case Year: 1981

Subject: The Bangladesh Shipping Corporation

Delivery Date: 2018-04-01

The Bangladesh Shipping

Corporation (Service)

Regulations, 1981

Regulation 12(a)- Claim for back salaries—

When termination of service is found malafide by the concurrent findings of the trial and appellate court, the claim of the plaintiff for back salaries on reinstatement cannot be defeated on the plea of set off raised before the Appellate Division for the first time in the absence of specific proof of the plaintiffs earning salary or .profit being engaged in any other service or business.

Bangladesh Shipping Corporation Vs. Rakibuddin Ahmed & others. 1, MLR (1996) (AD) 283.

The Bangladesh Water and Power Development Board Order, 1972

Citation: 2, MLR(1997) (AD) 377, 4, MLR (1999) (AD) 327

Case Year: 1972

Subject: The Bangladesh Water and Power Development Board

Delivery Date: 2018-04-01

The Bangladesh Water and Power Development Board Order, 1972

(P.O. No. 59 of 1972)

Article 19(1)(2)— Quantum of compensation cannot be decided in writ jurisdiction—

Owner of the land occupied by erecting electric tower thereon is entitled to compensation from the Power

Development Board. The quantum of compensation being a question of fact cannot be decided in writ jurisdiction. The Deputy Commissioner is competent to determine the amount of compensation when the dispute is referred to him.

Dhaka Electric Supply represented by its Chairman Vs. Rahima Begum and others- 2, MLR(1997) (AD) 377.

Section 4(3)— Authority of the Government in relation to function of the Bangladesh Water Development Board—

Under section 4(3) of the P.O. No.59 of 1972 the Government may from time to time give directions to the Board which are of the nature of guidance, policies and procedures. In terms of clause 25 of the Contract agreement the writ petitioner could refer the objection as to deduction in the bill for arbitration for resolving the dispute. Since the matter involved is contentious one, it does not come within the ambit of the writ jurisdiction of the High Court Division. The Secretary Ministry of Water Resources, Irrigation and Flood Control has no authority to direct payment of the disputed bill.

Chairman, Bangladesh Water Development Board and another Vs. M/S Shamsul Huq and Co. Ltd. and others- 4, MLR (1999) (AD) 327.

The Board of Intermediate and Secondary Education Dhaka

Citation: 2, MLR (1997) (AD) 343, 4 BLD (HCD) 309

Subject: The Board of Intermediate and Secondary Education

Delivery Date: 2018-04-01

The Board of Intermediate and Secondary Education Dhaka

(Governing Bodies of Non-Government Intermediate Colleges) Regulations, 1977— ,Regulation 11-

Chairman of G.B. of non-government Intermadiate College has independent authority to hold election of its members— Both under Regulation 11 of 1977 Regulations and Section 10 of the Intermediate and Secondary Education Ordinance 1961, the Chairman of the Governing Body of a Non-Government Intermediate College has independent authority to hold election of the members of the Governing Body or to postpone the same. Government can not direct the Chairman of such Governing Body to act in particular way in matters of holding election or direct dissolution of any such Governing Body and the Chairman cannot work under such unauthorised direction of the Government.

Board of Intermediate and Secondary Education, Dhaka represented by its Chairman and others Vs. Md. Faizur Rahman and others- 2, MLR (1997) (AD) 343.

Board of Intermediate and Secondary Education, Jessore Recognised Non-Government Secondary School Teachers Service Regulations 1973— Regulation 15- Removal of a teacher-Procedure and legal requirements—

It is the mandatory requirement that a teacher or a Head Master of a recognised Non-Government Secondary School can not be removed without a 7 days notice meeting and prior approval of the Board. In the absence of resolution of such a meeting of the Managing Committee arid prior approval of the Board and without giving an opportunity of being heard the order of removal is bad in law being violative of the principle of natural justice and is of no legal effect.

Sardar Afvned Ali Vs. G.M. All Baksha and others- 4 BLD (HCD) 309.

The Building Construction Act, 1952

Citation: 1, MLR (1996) (AD) 64

Case Year: 1952

Subject: The Building Construction

Delivery Date: 2018-04-01

The Building Construction Act, 1952

Section 3B (1), (3), (5)- Notice-opportunity of hearing before demolition—

The Appellant/owner is entitled to not less than seven days notice under clause (b) of sub-section (1) of section 3 B to answer breach of any of the terms and conditions of sanction for construction. The Authorised officer is required by subsection (3) of section 3 B to consider the cause shown, if any, and give the appellant an opportunity of being heard. No order of demolition can be passed under sub-section (5) unless the disputed building in fact does not fit in within the description of clauses (a) or (b) or (c) of sub-section (5) of section 3B.

Abdus Sattar Vs. Bangladesh and others 1, MLR (1996) (AD) 64.

The Chittagong Hill Tracts Regulations, 1900

Citation: 2,MLR(1997) (HC) 17, 3 MLR (1998) (AD) 41,

Case Year: 1900

Subject: The Chittagong Hill Tracts

Delivery Date: 2018-04-09

The Chittagong Hill Tracts Regulations, 1900

Investituture of the Chief-ship—

The investiture of the Chief-ship of Bohmong dynasty in Chittagong Hill Tracts is governed by rule 48 of the Rules made under Regulations 1900 on the basis of the fitness and age of the senior most male member of the lineal descendants. The seniority of age is not the only criterion for a male member to be nominated and recognised as the Bohmong Chief.

Aung Shwe Prue Chowdhury Vs. Government of Bangladesh and others. 2,MLR(1997) (HC) 17. (Over ruled by decision reported in 3 MLR (1998) (AD) 41).

Appointment of Bohmong Chief—

The office of the Bohmong Chief of the Bohmong Circle is not political and as such the selection and appointment of the Bohmong Chief need not be made on any political or administrative consideration. Age afid fitness are the main criterion on the basis of which the Bohmong Chief is selected and appointed solely according to age-old customs and usages. So long the senior ftiost male lineal descendant of the Bohmong dynasty is not adjudged physically and mentally incapable, he can not be denied his customary right to the office and dignity of the Bohmong Chief.

Aung Shwe Prue Chowdhury Vs. Kyaw Sain Prue Chowdhury and others. 3 MLR (1998) (AD) 41.

THE CHITTAGONG PORT AUTHORITY ORDINANCE, 1976

THE CHITTAGONG PORT AUTHORITY ORDINANCE, 1976

(ORDINANCE NO. LII OF 1976).[7th July, 1976]

An Ordinance to provide for the establishment of the Chittagong Port Authority.

WHEREAS it is expedient to provide for the establishment of an Authority for the management, maintenance and development of Chittagong Port and for matters connected therewith or incidental thereto;

NOW, THEREFORE, in pursuance of the proclamations of the 20th August, 1975, and 8th November, 1975, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-

CHAPTER I

PRELIMINARY

Short title and commencement

1. (1) This Ordinance may be called the Chittagong Port Authority Ordinance, 1976.

(2) It shall come into force on such date as the Government may, by notification in the official Gazette, appoint.

Definitions

2. In this Ordinance, unless there is anything repugnant in the subject or context,-

(a) “Authority” means the Chittagong Port Authority established under section 4;

(b) “Board” means the Board of the Authority constituted under section 6;

(d) “dock” includes basins, locks, cuts, quays, wharves, warehouses, railways and other works and things appertaining to any dock;

1[ (e) “goods” includes wares, merchandise and container of every description;]

(f) “high water-mark” means a line drawn through the highest points reached by ordinary spring tides at any season of the year;

(g) “land” includes buildings and benefits arising out of land things attached to the earth or permanently fastened to anything attached to the earth and the foreshore and the bed of the river below high water-mark;

(h) “master”, when used in relation to any vessel, means any person, not being a pilot or harbour master, having for the time being command or charge of such vessel;

(i) “member” means a member of the Board;

(j) “owner”, when used in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, shipping, clearing or removing such goods, and when used in relation to any vessel, includes any part owner, charterer, consignee of mortgagee in possession thereof;

(k) “pier” includes any stage, stairs, landing place, jetty, floating barge or pontoon and any bridge or other work connected therewith;

(l) “Port” means the Chittagong Port as for the time being defined for the purposes of this Ordinance;

(m) “prescribed” means prescribed by rules;

(n) “regulations” means regulations made under this Ordinance;

(o) “rules” means rules made under this Ordinance;

(p) “vessel” includes any ship, barge, boat, raft or craft, or any other thing whatever, designed or used for the transport by water of passengers or goods;

(q) “wharf ” includes any bank of the river which may be improved to facilitate the loading or unloading of goods, and any foreshore used for the same, and any wall enclosing or adjoining such bank or foreshore.

Declaration of limits of Port

3. (1) The Government may, by notification in the official Gazette, define the limits of Chittagong Port for the purposes of this Ordinance; and may, from time to time, by a like notification, alter such limits.

2[ (2) Such limits may extend to any part of the navigable approaches to the Port and the outer anchorage or to any part of the sea, river, shore, bank or land, and may include any dock, pier, shed or other work made on behalf of the public for the convenience of the traffic, transportation, handling of goods, for the safety of the vessels or for the improvement, maintenance or good governance of the Port or river and their approaches, whether within or without high water mark, and subject to any right of private property therein, any portion of the shore, bank or land within fifty yards of high water mark.]

CHAPTER II

ESTABLISHMENT OF THE AUTHORITY

Establishment of the Authority

4. (1) With effect from such date as the Government may, by notification in the official Gazette, appoint, there shall be established an Authority for Chittagong Port to be called the Chittagong Port Authority for carrying out the purposes of this Ordinance.

(2) The Authority shall be a body corporate, having perpetual succession and a common seal, with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of 3[ , by lien, mortgage, sell, alienation or otherwise] property, both movable and immovable, and shall by the said name sue and be sued.

Management

5. (1) The general direction and management of the Authority and its affairs shall vest in a Board which may exercise all powers and do all acts and things which may be exercised done by the Authority.

(2) The Board in discharging its functions shall be guided on questions of policy by such directions as may be given to it, from time to time, by the Government.

The Board

6. (1) The Board of the Authority shall consist of a Chairman and not more than 4[ four other members] to be appointed by the Government.

(2) The Chairman and other members shall be full-time officers of the Authority and shall hold office on such terms and conditions as may be determined by the Government.

(3) The Chairman shall be the chief executive officer of the Authority.

(4) The Chairman and other members shall perform such functions and discharge such duties as are assigned to them by or under this Ordinance.

Meetings

7. (1) The meetings of the Board shall be held at such times and places and in such manner as may be provided by regulations:

Provided that, until regulations are made in this behalf, the meetings of the Board shall be held as and when convened by the Chairman.

(2) To constitute a quorum at a meeting of the Board not less than two members shall be present.

(3) At a meeting of the Board each member shall have one vote, and in the event of equality of votes the Chairman shall have a second or casting vote.

(4) The meetings of the Board shall be presided over by the Chairman, and, in his absence, by a member elected for the purpose by the members present.

(5) No act or proceeding of the Board shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution of, the Board.

Advisory Committee

8. The Government may, in consultation with the Authority, appoint an Advisory Committee consisting of such number of persons as it may think fit for the purpose of advising the Authority in respect of such matters as may be referred to it by Authority or by the Government.

CHAPTER III

POWERS AND FUNCTIONS OF THE AUTHORITY

Functions of the Authority

9. The functions of the Authority shall be-

(a) to manage, maintain, improve and develop the Port;

(b) to provide and maintain adequate and efficient port services and facilities in the Port or the approaches to the Port;

(d) to do such acts and things as may be necessary or convenient to be done in connection with, or incidental or conductive to, the performance of its functions under this Ordinance.

Powers of the Authority

10. (1) Subject to the other provisions of this Ordinance, the Authority may take such measures and exercise such powers as may be necessary for carrying out the purposes of this Ordinance.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), the Authority shall, in particular, have power-

(a) to construct, maintain and operate docks, moorings, piers and bridges within the Port, with all necessary and convenient drains, arches, culverts, roads, railways, fences and approaches;

(b) to undertake any work of or in connection with the loading, unloading and storing of goods in the Port;

(d) to construct, maintain and operate railways, warehouses, sheds, engines, cranes, scales and other appliances for conveying, receiving, handling and storing goods to be landed or shipped or otherwise dealt with by the Authority;

(e) to reclaim, excavate, enclose or raise any part of the bank or bed of the river;

(f) to construct, maintain and operate dredgers and appliances for cleaning, deepening and improving the bed of the river;

(g) to construct, maintain and operate all means and appliances for berthing, loading and discharging vessels;

(h) to construct, maintain and operate vessels for towing or rendering assistance to vessels, saving life and property or recovering any property lost, sunk or stranded;

(i) to supply fuel or water to vessels;

(j) to provide fire and security services within the Port;

(k) to acquire, hire, procure, construct, erect, manufacture, provide, operate, maintain or repair anything whatsoever required by the Authority for the purposes of this Ordinance;

(l) to control the erection and use of docks and any other works, whether above or below the high water-mark, within the Port or the approaches to the Port;

(m) to acquire any undertaking affording or intending to afford facilities for the loading and discharging or warehousing of goods in the Port or for the bunkering of vessels;

5[ (mm) to regulate the custom agents licensed under the Customs Act, 1969 (IV of 1969) in the performance of their functions within the limits of Chittagong Port;]

(n) to enter into any contract, bond or agreement of any kind whatsoever for the purposes of this Ordinance.

Removal of vessels and equipment from docks, etc

6[ 11. (1) The Authority may, by notice in writing, order the master or owner or agent of any vessel or equipment to remove from any dock, mooring, pier, anchor site or any other site belonging to the Authority.

(2) If such vessel or equipment is not removed therefrom within the time specified in the notice, the Authority may charge in respect of such vessel or equipment at the rate specified by it in accordance with the provisions of section 19.]

Authority to take charge of goods

12. (1) The Authority shall, immediately upon the landing of any goods on its quay, wharf or pier, take charge thereof and store such of the goods as may be liable to damage or deterioration by exposure in any shed or warehouse belonging to the Authority.

7[ (2) Subject to the provisions of this Ordinance, the responsibility of the Authority for the loss, destruction or deterioration of goods of which it has taken charge shall be that of a bailee under section 151, 152, 161 and 164 of the Contract Act, 1872 (IX of 1872):

Provided that no responsibility under this section shall attach to the Authority after the expiry of ten days from the date of taking charge of goods by the Authority.]

Accommodation for Customs officers on docks, etc

13. Where under the provisions of any law for the regulation of duties of customs, any dock, mooring, pier or shed, provided under this Ordinance for the use of sea-going vessels is appointed to be a dock or wharf for the landing or shipping, or a warehouse for the storing of goods within the meaning of such law, the Authority shall set apart, maintain and secure on or in such dock, mooring, pier or shed such option thereof, or place therein, or adjoining thereto, for the use of the officers of Customs as the Government may approve of or appoint in that behalf.

Dues at Customs docks, etc

14. Notwithstanding that any dock, mooring, pier or shed or portion thereof has, under the provisions of section 13, been set apart of the use of the officers of Customs, all dues, rates, tolls, charges and rents payable under this Ordinance in respect thereof or for the use thereof or for the storage of goods therein, shall be paid and be payable to the Authority, or to such persons as it may appoint to receive the same.

Registration of cargo-boat traffic

15. (1) The master of every vessel entering or leaving the Port to which the provisions of the Customs Act, 1969 (IV of 1969), in regard to entering or clearing at a Customs House, do not apply shall be bound to stop at one or other of the stations established by Authority for the registration of river-borne traffic, and forthwith to make a full and true declaration of the nature and value of the cargo at the time being carried by him on such vessel.

(2) No such master shall withdraw his vessel from any such station until he has received from the officer-in-charge of the same a pass on which the particulars of the nature and value of the cargo so being carried shall be recorded.

Right of the Authority to maintain pilots

16. (1) The Authority shall have the right of maintaining pilots for the navigation of vessels at the Port and shall be bound to provide a sufficient number of pilots for that purpose, and all fees for pilotage shall be paid to the Authority:

Provided that no person shall be appointed to be a pilot by the Authority who is not for the time being authorised under the provisions of the Ports Act, 1908(XV of 1908), to pilot vessels.

Private docks, etc prohibited

17. (1) Save as provided in section 18, no person except the Authority shall make, erect or fix below high water-mark within the Port any dock, pier, erection or mooring.

(2) Any matter or thing made, created or fixed in contravention of sub-section (1) may be removed by the Authority and the person who has so made, erected or fixed any such matter or thing shall be punishable with fine which may extend to ten thousand taka for every day during which such matter or thing has been permitted to remain so made, erected or fixed after notice to remove the same has been given to him, and shall also be liable to pay all expenses which may have been incurred by the Authority in removing such matter or thing.

Power to permit erection of private docks, etc

18. The Authority may, by order in writing and subject to such conditions as may be specified therein, permit any person to make, erect or fix below high water-mark within the Port any dick, pier, erection or mooring.

Scales of tolls, etc

19. (1) The Authority shall frame-

(a) a scale of tolls, dues, rates and charges, annual or other, to be paid by the owners of vessels plying, whether for hire or not and whether regularly or occasionally, within or partly within and partly without the limits of the Port, in respect of such vessels and of persons whether in charge of or on board such vessels, and also in respect of the licensing, registration and regulation of such vessels and persons:

Provided that no such tolls, dues, rates and charges shall be chargeable in respect of vessels which are liable to port dues under the provisions of Schedule I to the Ports Act, 1908 (XV of 1908);

(b) a scale of tolls, dues, rates and charges-

(i) for the landing and shipment of goods from and in sea-going vessels, and vessels not being sea-going, respectively, at such docks, piers and anchorages as belong to the Authority, or any other agency authorised by the Authority to construct such docks;

(ii) for the use of such docks, piers, and anchorages by such vessels;

(iii) for the storing and keeping of any goods stored in any premises belonging to the Authority;

(iv) for the removal of goods; and

(v) for the use of any mooring;

(c) a scale of tolls for the use of the said docks, piers and anchorages by any such vessels, in case the Authority permits the goods to be landed or shipped by persons other than its own officers and employees; and

(d) a scale of charges for-

(i) any service to be performed by the Authority or its officers and employees in respect of any vessels or goods;

(ii) the use of any 8[ works] or appliances to be provided by the Authority;

(iii) 9[ * * *] the carrying of passengers and their personal effects on vessels belonging to, or hired by, the Authority; and

(iv) 10[ the towing] of and rendering assistance to any vessels, tugs or other boats, or their equipment, within the limits of the Port or outside those limits, for the purpose of saving or protecting life or property.

(2) Every scale framed under sub-section (1) shall be submitted to the Government and after approval or modification by the Government, shall be published in the official Gazette.

Power of Authority to impose river due

11[ 19A. The Authority may, with the previous sanction of the Government and by notification, impose a river due on all goods landed from or shipped into any seagoing vessel lying or being within the limits of the Port, whether such goods shall or shall not be so landed or shipped at any dock, wharf, quay, stage, mooring, jetty or pier belonging to the Authority.]

Remission of tolls, etc

20. The Authority may, in special cases, with the previous sanction of the Government, remit the whole or any portion of a toll, due, rate or charge leviable according to any scale for the time being in force under section 19:

Provided that no sanction of the Government shall be necessary if the remission in any one case does not exceed one thousand taka or such larger sum as the Government may from time to time specify.

Authority’s lien for tolls etc

21. (1) For the amount of all tolls, dues, rates and charges leviable under this Ordinance in respect of any goods, the Authority shall have a lien on such goods, and shall be entitled to seize and detain the same until such tolls, dues, rates and charges are fully paid.

(2) For the amount of rent lawfully due on buildings, plinths, stacking areas and other premises which are the property of the Authority and not paid after demands therefor have been duly preferred, the Authority shall have a lien on all goods therein or thereon, and shall be entitled to seize and detain the same.

(3) Tolls, dues, rates and charges in respect of goods to be landed shall become payable immediately on the landing of goods and in respect of goods to be removed from the premises of the Authority or to be shipped for export shall be payable before the goods are removed or shipped.

(4) The lien for such tolls, dues, rates and charges shall have priority over all other liens and claims, except a lien for freight, primage and general average, where such lien has been reserved in the manner hereinafter provided, and the lien for money payable to the Government under any law for the time being in force.

Ship owner’s lien for freight

22. (1) If the master or owner of any vessel, at or before the time of landing from such vessel of any goods at any dock or pier, gives to the Authority notice in writing that such goods are to remain subject to a lien for freight, primage or average of any amount to be mentioned in such notice, such goods shall continue to be liable, after the landing thereof, to such lien.

(2) Such goods shall be retained either in the warehouses or sheds of the Authority or, with the consent of the Collector of Customs, in a public warehouse, at the risk and expense of the owner of the said goods, until the lien is discharged as hereinafter mentioned.

Discharge of Ship owner’s lien for freight

23. Upon the production to any officer appointed by the Authority in that behalf of a document purporting to be receipt for, or a release from, the amount of such lien, executed by the person by or on whose behalf such notice has been given, the Authority may permit such goods to be removed without regard to such lien.

Recovery of tolls, etc by sale of goods

24. (1) If the tolls, dues, rates and charges payable to the Authority under this Ordinance in respect of any goods or if rents due under section 21 are not paid, or if the lien for freight, primage or general average, where such notice as mentioned in section 22 has been given, is not discharged, the Authority may, and in the latter event , if required by or on behalf of the person claiming such lien for freight, primage or general average, shall at the expiration of two months from the time when the goods were placed in its custody, or seized and detained for rents due sell by public auction the said goods, or so much thereof as may be necessary to satisfy the amount hereinafter directed to be paid out of the produce of such sale.

(2) Before making such sale at least ten days' notice of the sale shall be given by publication thereof in a daily newspaper and a copy thereof shall be affixed in a conspicuous place in the office of the Authority.

(3) If the address of the consignee of the goods or of his agent has been stated on the manifest of the cargo or in any of the documents which have come into the hands of the Authority, or is otherwise known, notice shall also be given to the consignee of the goods or to his agent by letter delivered at such address or sent by post; but the title of a bona fide purchaser of such goods shall not be invalidated by reasons of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent:

Provided that, if such goods are of so perishable a nature as, in the opinion of the officer appointed by the Authority in that behalf, to render early or immediate sale necessary or advisable, the Authority may, within such period being not less than twenty-four hours after the landing of the goods as it thinks fit, sell by public auction the said goods or such portion thereof as aforesaid in which event such notice, if any, shall be given to the consignee of the goods or his agents as the urgency of the case admits of .

Removal of unclaimed and un cleared goods

25. (1) When delivery of goods is not claimed or effected by the owner at the expiry of 12[ thirty days] from the date on which they are placed in the custody of the Authority, the Authority shall cause a notice to be served upon the owner requiring him to remove the goods:

Provided that, where all rates and charges in respect of such goods have been duly paid, such notice shall not be served till the expiration of two months from the date on which the goods were placed in the custody of the Authority.

(2) Such notice shall be published and served in the manner prescribed in sub-sections (2) and (3) of section 24, but where the owner is not known or the notice cannot be served upon him or he does not comply with the notice, the Authority may sell the goods by public auction after the expiration of 13[ forty five days] from the date on which such goods were placed in the custody of the Authority.

(3) The Government may, by notification in the official Gazette, exempt any goods or class of goods from the operation of this section.

Power to distrain vessels for non-payment of tolls, etc

26. (1) If the master of any vessel in respect of which any tolls, dues, rates, charges or penalties are payable under this Ordinance, or any regulations or orders made thereunder, refuses or neglects to pay the same or any part thereof on demand, the Authority may distrain or arrest of its own authority such vessel, and the tackle, apparel or furniture belonging thereto, or any part thereof, and detain the same until the amount so due is paid.

(2) In case any part of the said tolls, dues, rates, charges or penalties, or of the costs of the distress or arrest or of the keeping of the same, remains unpaid for a period of fifteen days next after any such distress or arrest has been so made, the Authority may cause the vessel, or other things so distrained or arrested, to be sold, and with the proceeds of such sale may satisfy such tolls, dues, rates, charges or penalties and costs of sale remaining unpaid, rendering the surplus, if any, to the master of such vessel on demand.

Port-clearance not to be granted till tolls, etc, paid

27. If the Authority gives to the officer of Government, whose duty is to grant the port-clearance of any vessel, a notice stating that an amount therein specified is due in respect of tolls, dues, rates, charges or penalties chargeable under this Ordinance, or any regulations or orders made thereunder, against such vessel, or by the owner or master of such vessel in respect thereof , or against or in respect of any goods on board such vessel, such officer shall not grant such port-clearance until the amount so chargeable has been paid.

Alternative remedy by suit

28. Notwithstanding anything contained in sections 21, 22, 23, 24, 25, 26 and 27, the Authority may recover by suit any tolls, dues, rates, charges, damages, expenses, costs, or in case of sale the balance thereof, when the proceeds of sale are insufficient, or any penalty payable to or recoverable by the Authority under this Ordinance or any regulations made thereunder.

Surplus of port dues to be paid to the Authority

29. The surplus, if any, of the moneys credited under section 36 of the Ports Act, 1908 (XV of 1908), to the account of the port fund of the Authority, after defraying therefrom all expenses legally chargeable to the said account shall be paid to the Authority.

Public landing and bathing places

30. (1) The Authority shall provide a sufficient number of landing places and bathing places within the Port from, upon or in which the public may be permitted to embark, land or bath free of charge.

(2) The Authority may occupy or remove or alter any landing place or bathing place, and prohibit the public from using such landing place or bathing place:

Provided that the Authority shall in that case provide for the use of the public some other landing places or bathing places.

CHAPTER IV

ESTABLISHMENT

Appointment of officers, etc

31. The Authority may, from time to time, appoint such officers and other employees as it may consider necessary for the performance of its functions on such terms and conditions as may be prescribed by regulations.

Members, etc, to be public servants

32. The Chairman, members, officers and other employees of the Authority shall, when acting or purporting to act in pursuance of any of the provisions of this Ordinance, be deemed to be public servants within the meaning of section 21 of the Penal Code (XLV of 1860).

Indemnity

33. No suit, prosecution or other legal proceeding shall lie against the Authority or against the Board or the Chairman or any member, officer or other employee of the Authority in respect of anything in good faith done or intended to be done under this Ordinance.

Delegation of powers to Chairman, etc

34. The Authority may, by general or special order, delegate to the Chairman or a member or an officer of the Authority any of its powers, duties or functions under this Ordinance subject to such conditions as it may think fit to impose.

CHAPTER V

FINANCE

Authority Fund

35. (1) There shall be formed a fund to be known as the Chittagong Port Authority Fund which shall vest in the Authority and shall be utilised by the Authority to meet the charges in connection with its functions under this Ordinance, including the payment of salaries and other remuneration to the Chairman, members, officers and other employees of the Authority.

(2) To the credit of the Chittagong Port Authority Fund shall be placed-

(a) grants made by the Government;

(b) loans obtained from the Government;

(d) sale proceeds of movable and immovable property and receipts for services rendered;

(e) loans obtained by the Authority with the special or general sanction of the Government;

(f) foreign aids and loans obtained from any source outside Bangladesh with the sanction of, and on such terms as may be approved by, the Government;

(g) proceeds of all charges and recoveries made under the Ports Act, 1908 (XV of 1908), and the provisions of this Ordinance; and

(h) all other sums receivable by the Authority.

Borrowing power

36. The Authority may, with the previous approval in writing of the Government, borrow money for carrying out the purposes of this Ordinance or for servicing any loan obtained by it.

Budget

37. The Authority shall, by such date in each year as may be prescribed, submit to the Government for approval a budget in the prescribed form for each financial year showing the estimated receipts and expenditure and the sums which are likely to be required from the Government during that financial year.

Audit and accounts

38. (1) The accounts of the Authority shall be maintained by it in such form and manner as may be prescribed by the Government.

(2) Without prejudice to the provisions of the Comptroller and Auditor-General (Additional Functions) Act, 1974 (XXIV of 1974), the accounts of the Authority shall be audited by not less than two auditors, being chartered accountants within the meaning of the Bangladesh Chartered Accountants Order, 1973 (P.O. No. 2 of 1973), who shall be appointed by the Government, on such remuneration, to be paid by the Authority, as the Government may fix.

(3) Every auditor appointed under sub-section (2) shall be given a copy of the annual balance-sheet of the Authority, and shall examine it together with the accounts and vouchers relating thereto and shall have a list delivered to him of all books kept by the Authority; and shall at all reasonable times have access to the books, accounts and other documents of the Authority, and may in relation to such accounts examine any officer of the Authority.

(4) The auditors shall report to the Authority upon the annual balance-sheet and accounts, and in their report state whether in their opinion the balance-sheet contains all necessary particulars and is properly drawn up so as to exhibit a true and correct view of the state of the Authority's affairs, and in case they have called for any explanation or information from the Authority, whether it has been given and whether it is satisfactory.

(5) The Government may, at any time, issue directions to the auditors requiring them to report to it upon the adequacy of measures taken by the Authority for the protection of the interest of the Government and of the creditors of the Authority or upon the sufficiency of their procedure in auditing the accounts of the Authority, and may, at any time, enlarge or extend the scope of the audit or direct that a different procedure in audit be adopted or that any other examination be made by the auditors if in its opinion the public interest so requires.

Cost of Port Police

39. The Authority shall provide such sums as the Government may, from time to time, determine as a contribution for the maintenance of police employed for the protection of the Port and the approaches to the Port.

CHAPTER VI

PENALTIES AND PROCEDURE

Penalty

40. Whoever contravenes any provision of this Ordinance or any rule or regulation made thereunder shall, if no other penalty is provided for such contravention, be punishable with imprisonment for a term which may extend to six months, or 14[ with fine which may extend to Taka fifty thousand], or with both.

Penalty for evading tolls, etc

41. Any person who removes or attempts to remove, or abets within the meaning of the Penal Code (XLV of 1860), the removal of any goods, vessel, animal or vehicle with the intention of evading payment of the tolls, dues, rates or charges lawfully payable in respect thereof shall be punishable with fine which may extend to 15[ fifty thousand Taka].

Penalty for pollution etc

16[ 41A. Any person who throws or allows to fall into the water, shore, bank or land within the limits of the Port any goods, ballast ashes or any other thing whatsoever causing pollution of the water or environment shall be punishable with fine which may extend to one lakh Taka.]

Compensation for damage to property

42. (1) In case any damage or mischief is done to any dock, pier or work of the Authority by any vessel, through the negligence of the master thereof or of any of the mariners or persons employed therein, not being in the service of the Authority, any Magistrate of the first class having jurisdiction in the Port area may, on the application of the Authority and on declaration by it that payment for such damage or mischief has been refused or has not been made on demand, issue a summons to the master or owner of such vessel, requiring him to attend on a day and at an hour named in the summons to answer touching such damage or mischief.

(2) If, at the time appointed in the summons, and whether the person summoned appears or not, it is proved that the alleged damage was done through such negligence as aforesaid, and that the pecuniary amount of the same does not exceed five thousand Taka, the Magistrate may issue his warrant of distress, under which a sufficient portion of the boats, masts, spares, ropes, cables, anchors or stores of the vessel may be seized and sold to cover the expenses of and attending the execution of the distress, and the pecuniary amount of damage as aforesaid, and such amount shall be paid to the Authority out of the proceeds of the distress:

Provided that if, at the time of the damage or mischief, the vessel was under the orders of a duly authorised officer belonging to the pilot service of the Authority and if such damage or mischief is in any way attributable to the order, act or improper omission of such officer, the case shall not be cognizable by the Magistrate under this section.

Cognizance of offences

43. No Court shall take cognizance of any offence punishable under this Ordinance except on a complaint in writing made by the Authority or by an officer authorised for the purpose by the Authority.

Recovery of dues as arrears of land revenue

44. All fees and sums due on account of property for the time being vested in the Authority and all arrears of tolls, charges, rates and dues imposed under this Ordinance may be recovered as arrears of land revenue, in addition to the other modes provided by this Ordinance.

CHAPTER VII

MISCELLANEOUS

Power of entry

45. (1) It shall be lawful for the Chairman or any member, or for any person either generally or specially authorised by the Chairman in this behalf,-

(a) to enter upon and survey, inspect or take level of any land;

(b) to dig or bore into the sub-soil;

(d) to mark such levels, boundaries and lines by placing marks and cutting trenches; and

(e) to do all other acts necessary to be done for any of the purposes of this Ordinance or for the preparation or execution of any plan or scheme in respect of the Port.

(2) No person shall enter upon any land without previously giving the occupier of the land at least twenty-four hours' notice in writing of his intention to do so.

Compulsory acquisition of land for the Authority

46. Any land required by the Authority for carrying out the purposes of this Ordinance shall be deemed to be needed for a public purpose and such land may be requisitioned or acquired for the Authority by the Deputy Commissioner or any other officer in accordance with any law for the time being in force.

Submission of yearly reports and returns

47. (1) The Authority shall submit to the Government, as soon as possible after the end of every financial year but before the last day of December next following, a report on the conduct of its affairs for that year.

(2) The Government may, after giving sufficient notice to the Authority, require it to furnish the Government with-

(a) any return, statement, estimates, statistics, or other information regarding any matter under the control of the Authority;

(b) a report on any subject with which the Authority is concerned; or

and the Authority shall comply with every such requisition.

Indemnity to the Authority for acts of officers, etc

48. The Authority shall not be answerable-

(a) for any misfeasance, malfeasance or nonfeasance of any of its officers or other employees or of any persons acting under the authority or direction of any such officer or other employee; or

(b) for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things within the limits of the Port which may be used by such vessel:

Provided that nothing in this section shall protect the Authority from a suit in respect of any negligence or default on its part or of any act done by or under its express order or sanction.

Limitation of suits

49. (1) No suit shall be instituted against the Authority or against the Chairman or any member, officer or other employee of the Authority or any person acting under their direction for anything done or purporting to be done under this Ordinance until the expiration of one month next after notice in writing has been delivered or left at the office of the Authority stating the cause of the suit and the name and place of residence of the intending plaintiff.

(2) Every such suit shall be commenced within six months next after the accrual of the right to sue and not afterwards.

Winding up

50. No provision of law relating to the winding up of bodies corporate shall apply to the Authority and the Authority shall not be wound up save by order of the Government and in such manner as it may direct.

Power of Government to make rules

51. The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

Transfer of officers on deputation

17[ 51A. Notwithstanding anything contained in this Ordinance or in any other law, rule or regulations for the time being in force, the Government may, if it considers necessary in the public interest, transfer on deputation any offic

The Civil Aviation Authority Ordinance, 1982

Citation: 2, MLR (1997) (HC) 191

Case Year: 1982

Subject: The Civil Aviation Authority

Delivery Date: 2018-04-09

The Civil Aviation Authority

Ordinance, 1982

(Ord.XXVII of 1982)

Section 5— Constitution of Board— Enquiry procedure when properly followed—

Board of Civil Aviation consists of a Chairman and 6 other members. There is no illegality if any member is assigned the charge of administration. When the delenquent was found guilty of the charge by the Enquiry Committee and was served with second show cause notice, the petitioner ought to have submitted his reply to the second show cause notice. In such case the remedy under the writ jurisdiction is not available to him.

Abdur Rahman Vs. Bangladesh Civil Aviation and another. 2, MLR (1997) (HC) 191.

The Contempt of Courts Act. 1926

Citation: 1, MLR (1996) (HC) 17, 1, MLR (1996) (HC) 49, 4, MLR (1999) (AD) 41, 5 MLR (2000) (AD) 249, 35 DLR (AD) 203, 40 DLR (HC) 232, 3 BID (AD) 317, 12 BLD (AD) 227, 12, BLD (AD) 150, 12 BID (HC) 54, 1, MLR (1996) (HC) 189, 1, MLR (1996) (HC) 237, 4, MLR (199

Case Year: 1926

Subject: The Contempt of Courts

Delivery Date: 2018-04-09

The Contempt of Courts Act. 1926

(Act XII of 1926)

Section 2- Scandalous and unbecoming language—

Where the writing contains scandalous and unbecoming language to bring the Court into disrespect and disrepute and castigates its dignity, its majesty and challenges its authority when the writer has knowledge of contempt law, he commits contempt of Court.

The Judges of High Court Division Vs. Ashok Kumar Karmaker and others . 1, MLR (1996) (HC) 17.

Section 2— Scandalous statement-

Statement not scandalous against the judge or the judiciary or the Superior Courts and not intended to lower down the image in the public estimation but containing constructive criticism relating to appointment of judges although mentioning the name of a sitting judge not in connection with his judicial function as a judge does not constitute contempt of court.

Dr. Ahmed Hussain Vs. Shamsul Hoque Chowdhury. 1, MLR (1996) (HC) 49.

Section 2— Contempt of Court—

Article written and published in news papers by the judge the judgment of whom is sub-judice the highest court being in seisin hearing in appeal, with a view to influencing the decision amounts to contempt of court and the apex court with a note of caution desired the author judge of the article to desist from committing such an act in future.

Hefzur Rahman (Md). Vs. Shamsun Nahar & another (para 160 per Mustafa Kamal-J.) 4, MLR (1999) (AD) 41.

Contempt of Courts Act, 1926—

Expressing opinion through publication in news papers by an author judge in the matters arising out of his judgment when pending for hearing in appeal before the Appellate Division is against judicial propriety. Since observation in the judgment of the Appeal was made disapproving such action advising the judge concerned to desist from committing such act in future Appellate Division held, no further action is warranted in the matter.

Shamsuddin Ahmed Vs. Justice Mohammad Gholam Rabbani & others . 5 MLR (2000) (AD) 249.

Contempt Civil contempt distinguished from criminal contempt—

Contempt of courts are classified into civil contempt and criminal contempt. The distinction between civil contempt and criminal contempt is narrow. Civil contempt is defined as wilful disobedience to any judgment, direction, order, injunction, writ or other process of court or wilful breach of an undertaking given to the court which are of civil nature as distinguished from those of criminal contempt.

Mahbubur Rahman Sikder Vs. Mujibar Rahman Stfcder (1983) 35 DLR (AD) 203.

No contempt in respect of arbitrator—

Arbitrator being not a court under the Code of Civil Procedure is not subordinate to the High Court Division and as such no contempt proceedings can be drawn against the opposite parties.

Begum Lutfunnessa Vs. N. Ahmed. 40 DLR (HC) 232.

Contempt of Court- What amounts to— Intentional and deliberate disobedience of court's order—

Deliberate and intentional disobedience of court's order amounts to contempt of court. Casual, accidental or unintentional disregard of the court's order may not constitute contempt of court. When the disobedience is repeated not that the contemner misunderstood the court's order, nor there was any ambiguity in the order, there is hardly any scope for holding that the violations were committed unintentionally or due to misunderstanding of the court's order. Contempt proceedings are of quasi-criminal nature and the contemner is not like an accused of a criminal case. He can make statement and swear affidavit in refutation of the allegations against him.

Mahbubur Rahman Sikder and others Vs. Majibar Rahman Sikder and others. 3 BID (AD) 317.

Stay of execution proceedings upon receipt of information— Subordinate Court cannot ignore stay order of Superior Court—

As soon as the Executing Court comes to know of the stay order either by receiving communication of passing the stay order by a court or through an affidavit from one of the parties to the proceedings or in other way, it will stay its hands till further order and if it does not do so, not only it acts illegally but also commits contempt of Court. However no action for contempt of Court can be taken if the Executing Court continues the execijtion proceedings due to ignorance of the stay order. There is no option for the subordinate Court to ignore the stay order until

The Contempt of Courts Act, 1926 (Act.XII of 1926)/The Co-operative Societies Ordinance, 1985

officially communicated in the doubt about ihe authenticity of the order of Superior Court. No stay can be demanded on a private telegram or on information received from an Advocate. The court may stay execution in its discretion but when an Advocate's information is disregarded reason must be given so that the exercise of discretion may be scrutinised by the superior court. Normally an Advocate's information will be honoured by the court unless a strong case of refusal is made out in the order of refusal. Apology to be offered must be unequivocal and should be made at the earliest opportunity. A belated apology hardly shows the contrition which is the essence of the purging of a contempt.

Chairman Kushtia Co-operative Industrial Union Ltd. Vs. Md. Majibar Rahman and others. 12 BLD (AD) 227.

Apology— Court to consider it's nature— Rejection of apology when not unconditional and unqualified—

When a contemner tenders apology as an act of contrition the court must consider and weigh the same while awarding the punishment. If the apology is found to be a real act of contrition, no action need be taken and a word of warning may be enough but if the apology is qualified, hesitating and sought to used as a device to escape the consequences of the contemner's action, it must be rejected.

Shamsur Rhaman D.I.G. Prisons Dhaka Vs. -Tahera Nargis Syeda and another 12, BLD (AD) 150.

Court should not be touchy and over sensitive—

In a contempt matter a court should not be touchy and over sensitive and no one should be held guilty of contempt of court unless there is a wilful disrespect of a court's order with full knowledge of it. A member in the judiciary who is deemed to be acquainted with the law of contempt can not be excused on ground of ignorance of law.

Ayub Ali Mahaldar Vs. Md. Shahjahan and another. 12 BID (HC) 54.

The Co-operative Societies Ordinance, 1985- Section 134(5)— Revisional jurisdiction of District Judge- Correction of age after retirement—

The District Judge is empowered under section 134 (5) to entertain and hear an application against the decision of the appellate authority. This is revisional jurisdiction of the District Judge in which he can decide the legality of the order of the appellate authority upon examination of the record of the proceeding. There is hardly any scope to take fresh evidence at this stage. The correction of age of an employee can not be made after his retirement.

Producers' Bangladesh Milk Cooperative Union Ltd. Vs. Md. Lai Mia and others. 1, MLR (1996) (HC) 189.

The Co-operative Societies Ordinance, 1985— Section 19(1)- The Co-operative Societies Rules 1987—

Rule 16(1A)-17— Co-operative Society not local authority—

Co-operative Society having not been established by the Government under any law is not a local authority within the meaning of sub-section (28) of Section 3 of the General Clauses Act, 1897 and as such no writ under article 102 of the Constitution lies against such society.

Jiban Kumar Barman Vs. M. Abdul Hye, Chairman of Election Committee and others. 1, MLR (1996) (HC) 237.

The Co-operative Societies Ordinance. 1985— Arbitrator can not grant injunction—

An Arbitrator appointed under the Cooperative Societies Ordinance has no power to stay or grant injunction during pendency of an arbitration case.

Giasuddin (Md) Vs. Secretary incharge-Eastern Cooperative Jute Society Ltd. and others. 4, MLR (1999) (HC) 4.

Section 134— Limitation for appeal-Non-application of section 5 of the Limitation Act, 1908-

The Co-operative Societies Ordinance, 1984 is a special statute prescribing specifically limitation for appeal against orders passed under sections 86 and 87 of the Ordinance. Sub-section (3) of Section 134 of the Ordinance expressly excludes the application of section 5 of the Limitation Act, 1908 to such appeal. When the District Judge dismissed the appeal on ground of limitation and refused ro condone the delay, there is nothing wrong in it as he acted in accordance with law.

Afazuddin and others Vs. District Judge, Cox's Bazar. 4, MLR (1999) (HC) 57.

The Contract Act, 1872

Citation: 3, MLR (1998) (AD) 1, 4, MLR (1999) (AD) 392, 5 MLR (2000) (HC) 404, 2, MLR (1997) (AD) 369, 2, MLR (1997) (AD) 56, 1, MLR (1996) (HC) 330, 1, MLR (1996) (HC) 223, 8 DLR (SC) 616, 22 DLR (SC) 443, 9 DLR (HC) 464, 11 DLR (HC) 185, 1 PLR (Dhaka) (HC) 627,

Case Year: 1872

Subject: The Contract Act

Delivery Date: 2018-04-09

The Contract Act, 1872

(Act IX of 1872)

Section 7— Earnest money does not form part of consideration—

Earnest money accompanying the tender signifies the bonafide of the proposal and it does not form part of consideration. Encashment of the earnest money sent with the tender does not amount to acceptance of tender. The matter of acceptance of the tender depends on the decision of the competent authority.

Bangladesh Muktyoddha Kalian Trust represented by the Managing Director Vs. Kamal Trading Agency and others. 3, MLR (1998) (AD) 1.

Section 16— Undue influence defined—

Undue influence arises usually in contracts made between relations or persons in fiduciary position. But as between strangers certain forms of coercion, oppression or compulsion may amount to undue influence vitiating a contract. When element of undue influence is established in obtaining a compromise decree, such decree is liable to be declared viod and not binding upon the plaintiff.

Abul Hossain Vs. Farooq Sobhan and others. 4, MLR (1999) (AD) 392.

Section 55- Time when not essence of contract—

In a suit for specific performance of contract where no time is mentioned in the agreement and as part performance and on payment of bulk of consideration, plaintiff is put in possession of the suit land, the suit is perfectly maintainable and is not barred by limitation.

Abdul Sarnad Gazi Vs. Abdul Khalil Gazi, 5 MLR (2000) (HC) 404.

Section 73— Suit for compensation-maintainability—

Damage or compensation for breach of contract can be claimed on the establishment of wilful breach of contract by the defendant. But when the plaintiff failed to establish that the part of his obligation was fully discharged his suit for damage or compensation is not maintainable.

M/s Nozrul Islam Khan & Co. (Put) Ltd. Vs. Festasi Shipping Company S.A and others. 2, MLR (1997) (AD) 369.

Suit for damage and compensation—

It is not permissible in law for a court to pass any order for delivery of possession of the property in a suit for damage and compensation. The plaintiff has to provide grounds for calculation of damage and in such case the defendant has no obligation.

Government of Bangladesh & others Vs. Hosne Ara Begum. 2, MLR (1997) (AD) 56.

Gift-Absence of acceptance—effect—

When the donee enters into possession of the land of gift within the knowledge of the donor, mere absence of declaration of acceptance of the gift in the deed does not invalidate the gift.

Achia Khatoon Vs. Md, Soleman and others. 1, MLR (1996) (HC) 330.

Viena Convention— Diplomatic immunities of the service staff of Mission—

Persons engaged in business in Bangladesh under the name of U.S. Commissary enjoy diplomatic immunities from civil jurisdiction under Viena Convention and as such the jurisdiction of Labour Court is not attracted in respect of them.

Kozi M, Delwar Hossain Baig Vs. Chairman 1st Labour Court Dhaka. 1, MLR (1996) (HC) 223.

Time is not always the essence of contract for sale of immovable property—

Even fixation of the period of contract with power to treat it as cancelled, if not fulfilled within time does not always make time essence of the contract.

Data Mia Vs. Haji Md. Ebrahim. 8 DLR (SC) 616.

Section 9— Price is the essence of sale of immovable property.

Unless price is shown there can be no sale of immovable property.

M/s. Chittagong Engineering & Electric Supply Co. Ltd. Vs. Income Tax Officer (1970) 22 DLR (SC) 443.

An agreement for reconveyance is assignable right—

An agreement to obtain a deed of reconveyance being a contractual right is an assignable right.

Sabed Ali Sikder Vs. Haji Rustom Ali Sikder. (1957) 9 DLR (HC) 464.

Sale to minor—Seller cannot take advantage of incapacity of minor—

A person who sells a property to a minor can not take the advantage of the minor's statutory incapacity to contract with a view to avoiding the transfer.

Ashraj Ali Vs. Earn Ali (1959) 11 DLR (HC) 185.

Section 11— Transfer of minor's property— Legal effect of—

A transaction which is void is a nullity and has no existence in the eye of law. Sale of property of a minor by unauthorised person such as mother of the minor under the Muslim law is void and of no legal effect. Possession of the transferee if given in pursuance of such transfer is no better than that of a trespasser,

1 PLR (Dhaka) (HC) 627.

Section 16— Transfer of property in lieu of dower—

When not executed under undue influence, transfer of property by a registered deed in lieu of dower is not a fictitious transaction.

Nasir Ahmed Khan Vs. Ismat Jahan Begum. (1969) 21 DLR (SC) 145.

Documents executed by poor, illiterate Pardanashin lady— Protection of-

Courls should be more careful in scrutinising the evidence while ascertaining the genuineness or otherwise of the document alleged to have been executed by pardanashin lady or poor illiterate lady under influence.

Md. Sheikh Vs. Moinuddin Sheikh (1970) 22 DLR (HC) 677.

Undue influence— Invalidates contract—

Undue influence usually arises in fiduciary position. But as between strangers between whom there exists no fiduciary relation, certain forms of coercion, oppression, compulsion or unlawful detention may constitute undue influence which invalidates a contract. Undue influence is not a matter always capable of direct proof.

Bindu Mukhi Vs. Sreemati Sarda SundarL (1954) 6 DLR (HC) 97.

Onus of proof of undue influence—

The burden of proof lies in the first instance upon the party who raises the plea of undue influence. If that party proves that the other party was not only in a position to dominate his will, but that the transaction entered into was also unconscionable, then the burden of proof that he did not use his dominant position to obtain an unfair advantage over the other is shifted on to him.

Bindu Mukhi Vs. Sreemati Sarda SundarL (1954) 6 DLR (HC) 97.

Section 20— Mistake of fact— Legal position of contract—

Agreement based on mutual mistakes of the parties is viod.

S. Sibtain Fazli Vs. M/s. Star Film Distributor. (1964) 16 DLR (SC) 198.

Section 23— When contract is void— Legal effect as to arbitration clause—

When a contract is viod abinitio falling within the mischief of section 23 of the Contract Act, the arbitration clause for settlement of dispute by arbitration will be unenforceable and the award if any given thereon shall be a nullity.

Monzoor Hossain and others Vs. Wali Mohammad and others (1965) 17 DLR (SC) 369.

Shalishnama, legal effect of—

A person having derived some advantage out of a Shalishnama can not subsequently disown the said shalish on the ground of his own wrong.

Md. Joynal Vs. Md. Rustam Ali (1984) 16 DLR (AD) 240.

Section 23— Provision of agreement as to limitation being opposed to law is viod—

When the Limitation Act prescribes the period of limitation for institution of legal proceedings any provision contrary thereto is void.

Islamic Republic of Pakistan Vs. Naza Din Khattah (1969) 21 DLR (Peshwar) (HC) 313.

Section 19— Letter or writing gives a fresh starting point of limitation—

Notwithstanding the provision in section 19 of the Limitation Act, a writing even given after the expiry of the period of limitation, acknowledging the debt gives a fresh starting of the limitation.

Tripura Modern Bank Ltd. Vs. Elahi Baksha (1966) 18 DLR (HC) 498. Riasatullah Vs. Tripura Modem Bank Ltd. (1968) 20 DLR (HC) 44.

Section 28— Agreement proceedings—

Agreement restricting proceedings is viod.

Abdul Razzak Vs. East Asiatic Co. (1952) 5 DLR (HC) 394.

Section 28— Mutual consent neither confer nor divest jurisdiction—

Jurisdiction cannot be conferred upon court which it does not have under general law nor any jurisdiction under the law can be divested by mutual consent of the parties. Contract restricting legal rights is void.

Tar Mohammad & Co. Vs. Federation of Pakistan. (1957) 9 DLR (HC) 197.

Submission to jurisdiction of foreign court—

The parties to the contract having agreed that in case of any dispute between the parties arising out of the contract will be tried by the court in England, such court in England will be the only Court to try the suit.

British India Steam Navigation Co. Vs. A.R. Chowdhury. (1967) 19 DLR (HC) 54.

Section 33— Objection against arbitration clause of contract—Not supported by affidavit—

Though section 33 of the Contract Act provides for deciding the objection against arbitration or award supported by affidavit, application not supported by affidavit is also maintainable.

M/S. Badri Narayan Agarwalla Vs. M/S. Pak. Jute Bailers Ltd. (1970) 22 DLR (SC) 45.

Section 37— Repudiation of Contract—

Unilateral repudiation of contract does not constitute an effective rescission of a deed except the decree of a court.

Kanehan Mala Bepari Vs. Ananta K. Bepari. (1954) 6 DLR (HC) 254.

Sale of immovable property accompanied by an agreement (ekrarnama) for reconveyance—

A subsequent purchaser of the vendor's right being the successor-in-interest, is entitled to enforce the right of reconveyance against the original vendee except a bonafide purchaser for valuable consideration without notice of the agreement.

Jalal Ahmed Vs. Thorais Mia. (1968) 20 DLR (HC) 80.

Section 46— Time is not essence of contract for sale of land—

Ordinarily time is not the essence of contract in an agreement for sale of land.

Haji Abdullah Khan Vs. Nisar Mohammad Khan. (1965) 17 DLR (SC) 481.

Section 48— When time is essence of Contract—

Time is the essence of a contract when there are express stipulation between the parties having regard to the nature of property depending upon the surrounding circumstances.

Purnendu Kumar Das Vs. Hiron Kumar Das. (1969) 21 DLR (HC) 918.

Time is essence of contract for resale—

In a case of a contract of sale generally the time may not be the essence of the contract, but in the case of a contract, for the resale of the same, the time is the essence of the contract.

Abdul Rahim Sardar Vs. Idris Ali Bepari (1959) 11 DLR (HC) 169.

Unless originally made subsequently time can not be made essence of the contract—

The principle is that if time is not originally made the essence of a contract for sale of land, one of the parties is not entitled afterwards by notice to make it of I the essence, unless there has been some default or unreasonable delay by the other party.

Abdul Hamid Vs. Abbas Bhai Vs. Abul Hossain Sodawaternwala. (1962). 14 DLR (SC) 24.

Suit for specific performance of Contract—

A suit for specific performance of contract will not be rendered defective by reason of the failure of the plaintiff to assert that he is ready and willing to perform his part of the contract where he has already asserted that he has performed his part of the contract.

Moksud Ali Vs. Eskandar All (1964). 16 DLR (SC) 138.

Section 56— Doctrine of frustration—When applicable—

"Where the subject-matter of the lease of tenancy is completely destroyed and section 108 of the Transfer of Property Act is not attracted, the doctrine of frustration of contract becomes applicable.

Azizur Rahman Vs. Abdus Sakur (1984) 36 DLR (AD) 195.

Section 63— Extension of time—

Time for performance of contract may be extended under section 63 of the Contract Act.

Abdul Jalil Chowdhury Vs. Mohammadi Steamship Co. Ltd. (1961) 13 DLR (SC) 214.

Damage for breach of contract—

Party guilty of breach of contract shall be liable to pay compensation measure of which shall be assessed on the quantum ofloss sustained on account of the breach or which the parties knew to be likely to flow from the breach.

M/S. Amiii Jute Mills Vs. M/S. A.R.A.G. (1976) 28 DLR (SC) 76.

The Courts of Admiralty Act, 1861

Citation: 12, MLR (1997) (HC) 194

Case Year: 1861

Subject: The Courts of Admiralty

Delivery Date: 2018-04-25

The Courts of Admiralty Act, 1861

Section 6— Release of ship from arrest on sufficient Bank guarantee—

Damage for delay in delivery of Cargo can be recovered on the basis of well reasoned criteria. Ship may be released from arrest on furnishing sufficient Bank Guarantee so that the damage determined during trial can be recovered without being frustrated.

Bangladesh Petroleum Corporation Vs. M.T. Saraband Ex. Sunrise- 12, MLR (1997) (HC) 194.

The Courts of Admiralty Act, 1891

Citation: 1, MLR (1996) (AD) 439, 2, MLR (1997) (AD) 107, 2, MLR (1997) (HC) 194, 3, MLR (1998) (AD) 59, 5 MLR (2000) (AD) 58, 5 MLR (2000) (HC) 217, 2 BLD (AD) 69, 3 BLD (HC) 3, 6 BLD (AD) 107, 10 BLD (HC) 105

Case Year: 1891

Subject: The Courts of Admiralty

Delivery Date: 2018-04-09

The Courts of Admiralty Act, 1891

(Act. No.XVI of 1891)

Amendment of plaint in Admiralty

suit-Plaint may be amended at any stage of the suit if it does not alter the nature and character of the suit. Amendment of the plaint on account of subsequent events does not change the nature and character of the suit as it is not introduction of new ideas but is a continuation of the original cause of action.

Pakistan National Shipping Corporation & another Vs. Resource International and others. 1, MLR (1996) (AD) 439.

The Chittagong Port Authority Ordinance, 1976—Section 19— Admiralty Court can not grant exemption from payment of dues of Port Authority—

The Judge of the Admiralty Court has no jurisdiction to grant exemption from payment of dues to the Chittagong Port Authority. The portion of the judgment by which such exemption was granted by the Admiralty Court is liable to be expunged.

Chairman, Chiltagong Port Authority & another Vs. Bangladesh represented by the Secretary, Ministry of Defence and others. 2, MLR (1997) (AD) 107.

Section 6—Release of ship from arrest on sufficient Bank guarantee—

Bangladesh Petroleum Corporation Vs. M.T. Saraband Ex. Sunrise-1. 2, MLR (1997) (HC) 194.

Jurisdiction of the Admiralty Court— Award of compensation

Despite the establishment of the Marine Court under the Shipping Ordinance, 1976 empowering it to award compensation for damage due to accident taking place in Inland Water recoverable like a decree of the Civil Court under section 52, the Admiralty Court has jurisdiction to decide suit for compensation for damages on account of accident due to rash and negligent driving taking place both in Inland Water and high sea.

Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others, 3, MLR (1998) (AD) 59.

Section 6- Jurisdiction of Admiralty Court—Jettison of cargo does not fall within such jurisdiction—

Suit for damage relating to goods arising out of negligence or misconduct or breach of duty or contract by the Shipowner, master or crew of the ship falls within the jurisdiction of the Admiralty Court. Suit in respect of declaration of general average arising out of jettison of cargo does not come within the jurisdiction of Admiralty Court under section 6 of the Act.

Sadharan Buna Corporation Vs. M.V. BIRBA & others. 5 MLR (2000) (AD) 58.

Section 10— Admiralty Court has jurisdiction to decide claim of seaman for wages etc.— Bangladesh Merchant Shipping Ordinance, 1983— Section 479— Claim for salary of seaman prevails over other claims-

High Court Division has jurisdiction to decide claim of seaman for salary, wages etc. under section 10 of the Admiralty Court Act, 1861 which shall have preference over all other claims as contemplated in section 479 of the Bangladesh Merchant Shipping Ordinance, 1983 and such action being one in rem as well as personam the decretal amount therefor is recoverable from the owner of the vessel or the sale proceeds of the vessel or from the operating agent as the case may be.

Volodymyr Pormov Vs. M.V. Terpsichore. 5 MLR (2000) (HC) 217.

Section 6— Jurisdiction of Admiralty Court— Claim for damage—

Section 6 of the Court of Admiralty Act, 1861 gives jurisdiction to the court only when there is damage done to the goods on account of breach of contract of carriage or due to negligence, misconduct or breach of duty, independently of the contract which resulted in the damage to the goods to be carried by the ship.

There is distinction between Maritime claims and maritime liens. All maritime liens are maritime claims but all maritime claims are not maritime liens. Parties by agreement cannot confer lien status on a claim which is not by nature a lien. The only lien recognised today are those created by statutes and those historically recognised in maritime law. Section 6 of the Admiralty Court Act, 1861 does not confer a maritime lien.

Al-Sayer Navigation Co. Vs. Delia International Traders Ltd. 2 BLD (AD) 69.

Section 6— Suit for compensation—Jurisdiction of admiralty court—

Suit for compensation for non-delivery of goods carried in a ship is maintainable before the Admiralty Court.

Albert David (Bangladesh) Ltd. Vs. M/S Brestern Shipping Company, 3 BLD (HC) 3.

No arrest of property other than the one concerned with the cause of action—

Since International Commerce and Trade cannot be disturbed by the arbitrary conduct of a party to a suit. Admiralty Court in Bangladesh has no power to arrest any property or ship of the defendant other than the one which was concerned in the cause of action. Suit in rem against other ship is not maintainable nor such ship can be attached under Order 38 rule 5 of the Code of Civil Procedure.

Kings Shipping Trading Co. Vs. M/S. L.S. Lines and others. 6 BLD (AD) 107.

Sections 6 and 7— Admiralty jurisdiction after creation of Bangladesh respecting marine insurance—

After the creation of Bangladesh as an independent state the High Court Division of the Supreme Court was declared to be the Court of Admiralty for the purposes of admiralty and maritime nature. The jurisdiction of the High Court Division in matters which concern marine insurance arising out of contracts and claims of marine mortgage is covered by the admiralty jurisdiction.

Bengal Liner Ltd, Vs. Shadharan Buna Corporation and another. 10 BLD (HC) 105.

The Customs Act, 1969

Citation: 2, MLR(1997) (AD) 302, 3, MLR (1998) (AD) 257, 2, MLR(1997) (AD) 70, 2, MLR (1997) (HC) 73, 3, MLR (1998) (HC) 261, 3, MLR (1998) (HC) 28, 5 MLR (2000) (AD) 1, 5 MLR (2000) (AD) 209, 5 MLR (2000) (HC) 19, 5 MLR (2000) (HC) 121, 1, MLR (1996) (AD) 253, 1,

Case Year: 1969

Subject: The Customs Act

Delivery Date: 2018-04-09

The Customs Act, 1969

(Act IV of 1969)

Section 16— Limitation for adjudication of dispute as to penalty under Customs Act-

There is no time limit for adjudication of dispute in respect of imposition of penalty under Customs Act. Merely because adjudication order was passed after 14 years is no ground for holding the same illegal.

Ancient Steamship Company Ltd. Vs. Member (Appeal and Revision) Ministry of Finance, Government of Bangladesh and others. 2, MLR(1997) (AD) 302.

Section 16 and section 156— Imports (Control) Act, 1950— Section 3(1)— Forfeiture of illegally imported goods—

The Collector of Customs has the authority to forfeit goods imported in violation of the provisions of section 16 of the Customs Act, 1969 read with section 3(1) of the Imports (Control) Act, 1950 and impose penalty under section 156(l)(9)(i) of the Customs Act.

Messers International Corn Company Vs. Government of People's Republic of Bangladesh represented by the Secretary, Ministry of Finance and another. 3, MLR (1998) (AD) 257.

Section Payment of Customs duty and VAT—

Customs duty and VAT are payable by the auction purchasers of foreign ship wreck occurring in Seaport area on the jute and jute goods therein when he auction purchased the same on a clear stipulation of payment of customs duty and VAT thereon.

Basluruddin Ahmed Vs. Secretary Ministry of Finance and others. 2, MLR(1997) (AD) 70.

Section 25—Assessment of Customs duty— On basis of Preshipment documents i.e. Yellow Book—

The assessment of customs duty on imported reconditioned vehicles as contemplated by sub-sections (1) and (2) of section 25 read with explanation thereof shall have to be made on the basis of pre-shipment document such as the Yellow Book and not on the basis of invoice, bill of lading etc, which have the scope of manipulation to evade customs duty causing colossal loss to the Government revenue.

Nasiruddin Ahmed, Proprietor, Rising Traders and others Vs. Commissioner/ Collector of Customs and others. 2, MLR (1997) (HC) 73.

Section 25— Payment of customs duty at the rate prevailing on opening the L.C.—

Importers are entitled to pay the customs duty on imported goods at the rate prevalent at the time of opening the letter of credit.

Khatrul Basher (Md) and others Vs. Collector of Customs and others. 3, MLR (1998) (HC) 261.

Section 25 (7)— Assessment on the basis of Tariff value—

The Customs authority is empowered under section 25(7) of the Customs Act, 1969 to levy duty on goods imported into Bangladesh on the basis of tariff value and not on the invoice value.

Friends Corporation (M/S) Vs. The Commissioner of Customs and others. 3, MLR (1998) (HC) 28.

Section 25(7)- Power of the Government to refix tariff value of imported goods for levying customs duty—

The tariff value of goods imported or exported are fixed from time to time by the Government for the purpose of public revenue and protecting local industries. Government can fix the tariff value from time to time of the imported goods on the recommendations of the High Powered Advisory Committee. The High Powered Advisory Committee does not have unfettered power. It must act on some objective informations and relevant materials germane to Customs Act, 1969 showing the fluctuation in international market price. When not done rationally based on some contemporaneous documents in support thereof the fixation of tariff value disproportionately higher than the previous rate will be arbitrary and capricious consequently the same becoming liable to be struck down.

Mustafa Kamal and others VS. The Commissioner of Customs and others. 5 MLR (2000) (AD) 1.

25(7) and section 30— Power of the Customs Authority to enhance tariff value and the effect thereof— Writ petition for refund of excess customs duty is not maintainable—

Under sub-section (7) of Section 25 of the Customs Act, 1969 the Customs Authorities have the power to enhance the tariff value of the imported and exported goods. Section 30 of the Act provides for the effect of such enhancement. The Importer / Exporter has to pay customs duty and sale taxes from the date of bill of entry and not from the date of opening the letter of credit. Writ petition for refund of excess customs duty is not maintainable as (here is already alternative efficacious remedy with the departmental authority.

Bangladesh and others Vs. Mizanur Rahman. 5 MLR (2000) (AD) 209.

Section 25-A— Section 30-A— Assessment of customs duty on imported goods—

The importer acquired vested right in respect of the rate of customs duty payable according to previous rate prevalent at the time when he opened letter of credit and C.R.F. certificate was issued after the imported goods reached the port of destination. He is not bound to pay the subsequently enhanced rate.

Md. Manu Mia VS. Government of Bangladesh & others. 5 MLR (2000) (HC) 19.

Section 25- Levy of customs duty on imported goods— Constitution of Bangladesh— Article 102— Maintainability of application under article 102 when alternative remedy is available—

The price of invoice shall be taken as normal value at the time of submission of Bill of entry unless the customs authority proves otherwise. There is no provision in law requiring the importer to declare "indicative value". Despite the provisions of alternative remedy an application under article 102 is maintainable when such remedy is saddled with inflexible pre-condition.

M/s. Russel Vegetable Oil Ltd. and another Vs. Collector of Customs, Chittagong and others . 5 MLR (2000) (HC) 121.

Section 30— Levy of customs duty—

The Customs Authority is empowered under section 30 of the Customs Act to levy and realise customs duty at the enhanced rate subsequent to the bill of entry.

Collector of Customs, Chittagong & others Vs. Ahmed Hossain and others. 1, MLR (1996) (AD) 253.

Section 30— Assessment of customs duty— Exemption of —

The Government can under section 19 allow fully or partially exemption of statutory duty on any goods. Such exemption does not create in favour of the importer any vested right. Assessment of customs duty at the time of delivery of goods at the enhanced rate is not illegal.

Aminur Rashid, Bengal Imports Ltd. Vs. Collector of Customs. 1, MLR (1996) (HC) 192.

Section 32(2)— Read with sub-section(2) and (3) of section 55 of VAT Act, 1991-Show cause notice— non-service of—

Though sub-section (2) of section 32 provides for service of notice to show cause, the petitioner after receipt of the demand notice went to the Appellate Authority and did not raise the question of non-service of notice which amounts to waiver of the right of hearing.

Eastern Chemical Industries Ltd. Vs. Government of Bangladesh 1, MLR (1996) (HC) 22.

Section 30— Payment of import duties— Release of imported goods under adinterim order on furnishing Bank Gaurantee—

Imported goods may be released on the ad-interim order of the High Court Division pending disposal of the Writ Petition on payment of concessional rate of duty in dispute only upon the petitioner's furnishing Bank guarantee for the balance duty.

The Commissioner of Customs, Benapole, Jessore Vs. Partex Beverage Ltd. and another, 3, MLR(1998) (AD) 151.

Section 30— Release of imported goods on Bank Guarantee when the assessment is under dispute— Personal Guarantee is not permissible—

Imported goods may be released on furnishing Bank Guarantee in respect of the enhanced disputed assessment. Personal Guarantee being weak and uncertain is not considered sufficient.

Commissioner of Customs, Mongla Customs House, Khulna and others Vs. SARC Enterprise. 4, MLR (1999) (AD) 240.

Section 30— Personal guarantee in lieu of Bank guarantee being weak and uncertain is not acceptable—

Pending disposal of the writ petition direction by way of ad-iriterim order may be given for release of imported goods subject to payment of taxes on C&F value and on furnishing bank guarantee in respect of the difference of tax on loaded value and C&F value. Personal guarantee of the importer being uncertain and harmful to the interest of public revenue has been discouraged and highly deprecated.

Commissioner of Customs, Customs House Chittagong Vs. Abu Hasnat and others. 4, MLR (1999) (AD) 345.

Interpretation of Notification as to levy of customs duties with retrospectivity—

Statutory notification as to levy of customs duties shall be interpreted as it stands for in its clear terms. Unless expressly provided for in the provisior thereof there is no scope to give retrospective effect to the notification either by adding to or deducting anything therefrom.

M/S Trade Impes Vs. Commissioner of Customs & others. 4, MLR (1999) (HC) 265.

Opening letter of credit—Recovery of money- Doctrine of contributory negligence—

The doctrine of contributory negligence in the English law is not applicable to the case in Bangladesh. When defrauded by not supplying the goods, the plaintiff is entitled to recover the money of the letter of credit. It was the duty of the plaintiff to verify the credit worthiness of the supplier before opening the letter of credit.

Mohammad Azizul Karim Vs. American Express Bank Ltd. and others. 2, MLR (]997) (AD) 391.

The Customs Act, 1969

Citation: 3, MLR (1998) (AD) 257

Case Year: 1969

Subject: The Customs

Delivery Date: 2018-04-25

The Customs Act, 1969

Section 16— Imports (Control) Act, 1950— Section 3(1)— Forfeiture of illegally imported goods—

The Collector of Customs has the authority to forfeit goods imported in violation of the provisions of section 16 of the Customs Act 1969 read with section 3(1) of the Imports (Control) Act, 1950 and impose penalty under section I56(l)(9)(i) of the Customs Act.

Messers International Com Company Vs. Government of People's Republic of Bangladesh represented by the Secretary, Ministry of Finance and another. 3, MLR (1998) (AD) 257.

The Easements Act, 1882

Citation: 4, MLR (1999) (HC) 246, (1957) 9 DLR 262, 42 DLR 115, 41 DLR (AD) 88, 42 DLR 115, 42 DLR 167

Case Year: 1882

Subject: The Easements

Delivery Date: 2018-04-09

The Easements Act, 1882

(Act No. V of 1882)

Section 4— Easements defined— Section 13— Acquistion of easement rights— Protection of right—

Easement as a prescriptive right to way can be acquired by peaceable and continuous use for twenty years. Such right can well be protected by injunction restraining the defendants from creating obstructions

Sabur Alam and others Vs. Mrs. Jahanara Begum and others. 4, MLR (1999) (HC) 246.

Easement Act, 1882— (V of 1882)—

For the purpose of establishing lost grant it is not necessary to establish immemorial user i.e. period beyond living memory but it is enough if it is in existence for 20 years. Mere non-user coupled with existence of an alternative passage does not always constitute abandonment.

Siddiq Ahmed Vs. Abdul Hamid. (1957) 9 DLR 262.

Section 4— Definition of easement—

It is apparent that the mentioning in the Kabala of the existence of the disputed pathway sometime over 50 year's back is a strong presumption that the user of the right is nothing but as a right, that is to say it has a lawful origin and therefore, it can be brashed aside by saying that walking over other's land even for hundred years does not create an easement right.

Abdul Latif Vs. Attar Ali, 42 DLR 115.

Section 15— Easement rights—

Easement Act, 1882 deals with customary easement but it does not deal with customary rights. Therefore customary right is distinguishable from customary easement. In that view of the matter the decision of the courts below regardless of the distinention thereof is erroneous.

Abdul Matin Vs. Taifunnessa. 41 DLR (AD) 88.

Section 15—

Section 15 is not exhaustive and does not preclude other titles or modes of acquisition such as by grant, express or implied. The act is thus remedial in nature and is neither prohibitory nor exhaustive.

Abdul Latif Vs. Attar Ali 42 DLR 115.

Section 41—

Easement of necessity is extinguished when the necessity comes to an end.

Mohsin Ali Chowdhury Vs. Mozammel Khan. 42 DLR 167.

The Employment of Labour (Standing Orders) Act, 1965

Citation: 2, MLR (1997) (AD) 203, 1, MLR (1996) (HC) 199, 1, MLR (1996) (HC) 240, 2, MLR (1997) (AD) 82, 2, MLR (1997) (AD) 208, 4, MLR (1999) (AD) 107, 4, MLR (1999) (AD) 248, 34 DLR (AD) 37, 22 DLR (1970) 577, 31 DLR (1979) (HC) 301, 31 DLR (1979) (AD) 120, 32

Case Year: 1965

Subject: The Employment of Labour

Delivery Date: 2018-04-12

The Employment of Labour

(Standing Orders) Act, 1965

Section 16—Continued ill-health and physical incapacity— two different aspects with different consequence—

"Continued ill-health" and Physical and mental incapacity as envisaged in section 16 are two different terms with different consequences. In the case of continued ill health the employee may recover the power to work but the case of physical and mental incapacity may not be recouped. The interpretation of the terms of "continued ill health" should not be put to any rigid formula rather it should be left for consideration of the employer depending on the circumstances of individual case so that the exercise of the power of the employer does not become too difficult or impossible.

Messers Kai'im Jute Mills Ltd. Vs. Chairman Second Labour Court and another. 2, MLR (1997) (AD) 203.

Section 18(6)— Non-consideration of opinion of Members of Labour Court— Renders decision arbitrary—

The opinion of the members of the Labour Court has to be considered by the Chairman with due weight. Non-consideration of such opinion without discarding with proper reasoning is arbitrary. The Labour Court acted illegally with material illegality while not considering the opinion of the member and not giving termination benefit to the petitioner.

Abdul Satiar, Victory Jute Products Ltd. Vs. The Chairman, Labour Court, Chitlagong. 1, MLR (1996) (HC) 199.

Section 25(d)- Rejection of complaint on technical ground - Not permissible—

When order of dismissal of a worker from service is illegal, he is entitled to reinstatement in service. The Labour Court cannot throw the complaint away merely on technical ground.

Md. Azizul Haq Vs. The Chairman, Labour Court, Khulna and others. 1, MLR (1996) (HC) 240.

Section 25— Power of the Labour Court to set-aside the order of termination of service—

The Labour Court has jurisdiction to set-aside the order of termination of service of a worker only on the ground of victimisation for trade union activities. An order of termination simpliciter of a worker can not be interfered with by the Labour Court in which case the worker is entitled to the termination benefits under section 19 of the Act.

Golam Mohammad Chowdhury Vs. Managing Director, Bata Shoe Company Ltd. 2, MLR (1997) (AD) 82.

Section 25— Ground of victimisation—To be taken at the earliest opportunity—

Ground of victimisation for union activites must be taken at the earliest opportunity. When not taken before the Labour Court no such plea can be raised before the Appellate Division. When the employee obtained his appointment by showing false and spurious certificate of his academic qualification, the dismissal order cannot be interfered with.

M. A. Mahbub Chowdhwy Vs. Second Labour Court and others. 2, MLR (1997) (AD) 208.

Section 25— Remedy against termination of service for union activities lies in Labour Court—

Services of the employees of Sonali Bank are governed by the Bank's (Staff) Service Rules. An employee whose services are terminated under the Bank's Service Rules before the Bank was included in the schedule of the Administrative Tribunals Act, 1980, had his remedy in the Civil Court against the termination of the service. When the services of a worker are terminated under section 19 of the Employment of Labour (Standing Orders) 1965 for union activities and deprived of the termination benefits, he can file complaint under section 25 of the Act.

General Manager, Sonali Bank and another Vs. Md. Ahul Khaijer and others 4, MLR (1999) (AD) 107.

Section 25—Industrial Relations Ordinance, 1969— Section 34— Claim of retrenched worker— Conversion of application under section 34 into one under section 25- whether permissible—

A person who is worker within the meaning of section 2(XXVIII) of the Industrial Relation Ordinance, 1969 can maintain an application under section 34 of the Ordinance, 1969. On the other hand a worker before bringing an application under section 25 of the Employment of Labour (Standing Order) Act 1965 in the Labour Court shall have to comply with the requirements under section 25(l)(a)(b) of the Act. Since the provisions of these two laws operate in different contexts, the application under section 34 of Ordinance, 1969 cannot be converted into one under section 25 of the Act of 1965.

Sabita Dutta (Mrs.) Vs. Manager, Cinema Palace, Chittagong and another. 4, MLR (1999) (AD) 248.

Section 2 (d)— Commercial establishment- what it includes—

Dhaka Improvement Trust (Now the RAJUK) being an authority created by statute is neither a Commercial Establishment nor an industrial establishment and as such the provisions of Employment of Labour (Standing Order) Act, 1965 are not applicable to it.

Chairman D.I.T. Vs. Chairman 2nd Labour Court (1982) 34 DLR (AD) 37.

Labour Court— Nature and functions—

Functions which a labour court performs are of judicial nature. It can decide the dispute judiciously in summary way but it can not disregard the principles of natural justice in such trial.

Md. Abdul Hague Vs. Second Labour Court. 22 DLR (1970) 577.

Section 2 (V) and section 25— Worker- Defined—

A person does not cease to be a worker only because he is employed in a supervisory capacity. It depends on the nature of the job done and not on his designation.

Mujibar Rahman Sarker Vs. Chairman. 31 DLR (1979) (HC) 301.

Loss of lien to appointment of a worker— It does not automatically occur— Authority has to decide the termination—

Failure of worker to return to work within 10 days of the expiry of leave does not by itself automatically terminate his lien to his appointment. The authority has to finally terminate his appointment on the happening of such event.

P.W.V Rowe Vs. Chairman Labour Court. 31 DLR (1979) (AD) 120.

Section 5(3) and section 17(3)(d)— Misconduct on account of unauthorised absence—

Absence without leave for more than ten days may constitute misconduct for which a worker may be dismissed from service. In that event a proceeding is required to be drawn under the law to comply with the rule of principle of natural justice.

Glaxo Bangladesh Ltd. Vs. Chairman Labour Court and others. 32 DLR (1980) (HC) 134.

Section 19— When an employee resigns he is not entitled to termination benefits—

An employee who resigns on his own accord is not entitled to termination benefits.

I.W.T.A. Vs. Chairman Labour Court (1977) 29 DLR (HC) 85.

Section 18(1)— Labour Court is not a court of appeal—

It is not the function of the Labour Court to make reassessment of the evidence recorded by the domestic tribunal and can not seat as a court of appeal. It can interfere with the order of punishment only when such punishment is awarded unlawfully or violating of the principle of natural justice.

Zeal Bangla Sugar Mills Vs. Chairman 1st Labour Court. 34 DLR (1982) 1.

Section 18(7)— Disciplinary action to be taken after obtaining permission from the Labour Court—

Disciplinary action can be taken against an employee only after obtaining permission from the Labour court. No agreement between the employee and employer can override this statutory provisions.

General Manager, Bogra Cotton Spinning Mills Ltd. Vs. Chairman Rqjshahi Labour Court. 31 DLR (AD) 329.

Section 19— Labour Dispute— What it constitutes—

In order to constitute a labour dispute there must be a direct relationship between the person and his employment or non-employment or condition of work. Person raising dispute must be worker having some interest in the dispute. A totality of these things constitutes a labour dispute. Labour Court can not go beyond the order of termination as the employer has the right to terminate the service of its employee in the event of which if the termination is for union activities the worker will be entitled to termination benefits under section 19.

Bangla Tea Estate Vs. Staff Association. 28 DLR (SC) 190.

Section 19- Termination simpliciter -No termination benefits available—

When a worker's service is terminated without charge or stigma which is termination simpliciter under section 19 of the Labour Ernployement (Standing Order) Act, 1965 eventually leading the worker out of employment and thus being out of employment he is no longer a worker within the meaning of section 2(s) of the Act and has no locus standi to raise any labour dispute. He is also not entitled to any remedy under section 25 of the Act.

Aminul Islam Vs. James Firilay Co. Ltd. (1974) 26 DLR (SC) 33.

Section 24 (1)— After termination of service an ex-employee can not stay in the quarter for more than 15 days even by instituting suit.

Abdul Khaleque Vs. Cresent Jute Mills Co. Ltd. (1969) 21 DLR 913.

Section 25— Discretionary power of the Labour Court—

Under section 25 of the Act, Labour Court has ample power to pass any order including reinstatement in service in appropriate cases upon an application made to it. It can allow termination benefits instead of reinstatement in a particular case.

S.H. Quddus and others Vs. Chairman Labour Court, Chittagong. (1981) 33 DLR (HC) 1.

Section 25(1) (c)— Labour Court can not act as court of appeal—

When the domestic enquiry was done bonafide after complying with legal requirements, the labour court has no jurisdiction to upset the finding of the domestic tribunal.

Bangladesh Shttpa Rin Sangstha Vs. Chairman 2nd Labour Court (1980) 32 DLR 265.

Section 25(1) (d)— Amendment of complaint petition—

Labour Court has limited jurisdiction. Amendment of Complaint petition can not be allowed with retrospective effect as under the Code of Civil Procedure. However Labour Court can allow amendment of complaint petition from the date of such amendment.

Management Board A.R. Howlader Jute Mills Vs. Chairman Labour Court (1976) 28 DLR 368.

Section 26- Enforcement of order of Labour Court—

Failure to give effect to the order of reinstatement of an employee to his post as passed by the Labour Court is punishable under section 26 of the Act. High Court Division Jhas no jurisdiction to quash the order passed by the Labour Court.

Md. M. Hoque Vs. Md. Shamsul Alom. (1983) 35 DLR 219.

Section 2(V) Worker - defined—

The term "worker" contemplates not only a person employed in the work for productive purposes in any commercial or industrial establishment but also includes a person who does any skilled or unskilled, manual, technical, trade promotional cr clerical Avurk for hire or reward.

Managing Director Rupali Bank Ltd. Vs. Md. Nazrul Islam Patwary and others. 48 DLR (AD) 62.

Section 2 (V)— Worker- defined—

Mere designation is not sufficient to indicate whether a person is a "worker" or an "employee" but it is the nature of the works showing the extent of his authority which determines whether he is a worker or employee . Mere supervisory capacity will not bring him to the category of a worker.

Senior Manager, Dost Textile Mills Ltd. Vs. Shudhanshu Bikash Nath. 8 BLD (AD) 66.

The Employment of Labour (Standing Orders) Act, 1965

Citation: 2, MLR (1997) (AD) 203

Case Year: 1965

Subject: The Employment of Labour

Delivery Date: 2018-04-25

The Employment of Labour (Standing Orders) Act, 1965

Section 16— Continued ill-health and physical incapacity— two different aspects with different consequence—

Messers Kartm Jute Mills Ltd. Vs. Chairman Second Labour Court and another 2, MLR (1997) (AD) 203.

The Ferries Act, 1885

Citation: 4, MLR (1999) (AD) 254

Case Year: 1885

Subject: The Ferries Act

Delivery Date: 2018-04-12

The Ferries Act, 1885

(Act No. 1 of 1885)

Section 5— Nowka ghat— Locus stand—in public interest litigation—

"Nowka ghat" where from passengers and cargo are carried to and from different destinations by country boats on payment basis, falls within the definition of "Ferry ghat". Unless a person has common interest and contributed substantially to the said cause has no locus stand! to maintain a public interest litigation.

Nasiruddin (Md) Vs. Secretary, Ministry of Local Government & Rural Development & others. 4, MLR (1999) (AD) 254.

The Finance Act, 1998

Citation: 3, MLR (1998)(HC) 249, 5 MLR (2000) (AD) 302

Case Year: 1998

Subject: The Finance Act

Delivery Date: 2018-04-12

The Finance Act, 1998

Section 7 (15)— The Provisional Collection of Taxes Act, 1931—

Section 3— Increase in taxes in public interest— No legal infirmity-

Section 3 of the Provisional Collection of Taxes Act, 1931 empowers the Government to impose or increase taxes in the public interest. As soon as a declaration to this effect is incorporated in the Schedule of the Finance Act, the import of section 3 becomes part of the Finance Act. Raising the customs duty pursuant thereto does not suffer from any legal infirmity.

Arif Rahman Vs. The Commissioner of Customs and others. 3, MLR (1998)(HC) 249.

Section 7(15)-Imposition of value added tax—

Customs authority is empowered to levy taxes on powder milk sold after repacking which has got statutory backing. This is not double taxation and as such section 7(15) of the Finance Act, 1998 is not ultra-vires of any statutory authority.

Shah Dairy Products Ltd. Vs. Commissioner, Customs & others. 5 MLR (2000) (AD) 302.

The Forest Act, 1927

Citation: 1, MLR (1996) (AD) 355, 1, MLR (1996) (HC) 340, 6 BLD (AD) 62, 40 DLR (AD) 202

Case Year: 1927

Subject: The Forest Act

Delivery Date: 2018-04-12

The Forest Act, 1927

(Act No. XVI of 1927)

Section 4- Authority of the Government to acquire land for reserved forests—

The Government is the final authority to acquire land for reserve forests. Construction of a document is a mixed question of fact and law which can be gone into and the finding of the lower appellate court can well be reversed by the High Court Division by showing cogent grounds.

Abu Musa being dead his heirs Md. Nurul Islam and others Vs. People's Republic of Bangladesh represented by the Secretary, Ministry of Forests. 1, MLR (1996) (AD) 355.

Section 82— Recovery of forest dues under PDR Act—

The claim on account of difference of the original auction sale price and resale value being liquidated amount as price of forest produce is recoverable as Government arrear revenue under the Public Demand Recovery Act, 1913, through certificate proceeding and not by Civil Court decree.

Md. Humayun Kabir and others Vs. Certificate officer, Perojpor. 1, MLR (1996) (HC) 340.

Section 20— Abatement of legal proceedings against constitution of Attia Reserved Forest—

After the promulgation of the Attia Forest (Protection) Ordinance 1982 (Ord. No.XXXlII of 1982) there is no scope to challenge the validity of the Notification of 1972 under the Forest Act, 1927 constituting the said reserved Forest. All judgments, decrees or orders in respect of Attia Forest shall have no legal force and all suits, appeals and other legal proceedings challenging the constitution of the Attia Reserved Forest shall abate. The Notification of 1972 constituting the Attia Reserved Forest shall remain valid independent of the Ordinance of 1982.

Bangladesh Vs. Abdul Baset Mia. 6 BLD (AD) 62.

Remedy against wrongful inclusion of lands—

There are adequate provisions for remedy against wrongful inclusion of lands in the notification constituting reserved forest. An aggrieved party may seek such remedy under the relevant law. When no such remedy is sought for as provided under the Forest Act 1927, the plaintiff can not get. any relief.

Province of East Pakistan Vs. S.A. Khan. 40 DLR (AD) 202.

The Government Servants (Discipline and Appeal) Rules 1976

Citation: 5 MLR (2000) (AD) 65

Case Year: 1976

Subject: The Government Servants (Discipline and Appeal)

Delivery Date: 2018-04-25

The Government Servants (Discipline and Appeal) Rules 1976

Rule 8- Dismissal on ground of conviction— Constitution of Bangladesh- Article 102- Rejection of Writ Petition- on ground of laches and inordinate delay-

Petitioners were dismissed from service on ground of conviction for criminal charge under the Martial Law dispensation. Although Martial Law was withdrawn on 10.11.1986. the petitioners filed the writ petitions in 1997. Explanations of long delay of 10 years in making repeated representations to various authorities have been held to be not acceptable. In view of inordinate delay and apparent laches on the part of the petitioners to come to the writ jurisdiction for seeking relief in summary way, the rejection of the writ petitions by the High Court Divisions is held to have been made rightly although on different grounds.

Md. Fazlur Rahman Akhonda (Md.) & others Vs. Government of Bangladesh. 5 MLR (2000) (AD) 65.

The Importers, Exporters and Indentors (Registration) Order, 1981

Citation: 3, MLR (1998) (AD) 29,

Case Year: 1981

Subject: The Importers, Exporters and Indentors

Delivery Date: 2018-04-17

The Importers, Exporters and

Indentors (Registration) Order, 1981

Articles 6, 8 and 9— Cancellation of Export Registration Certificate-Without opportunity of being heard-

While cancelling the Export Registration certificate show cause notice and opportunity of being heard must be given. Otherwise such an action being grossly violative of the principle of natural justice will not be sustainable in the eye of law. The Controller must act in so doing in independent exercise of his authority and not mechanically on the direction of the Government.

Vice Chairman, Export Promotion Bureau Vs. Acqua Foods Ltd. and others 3, MLR (1998) (AD) 29.

The Insurance Act, 1938

Citation: 1, MLR (1996) (AD) 442, 4, MLR (1999) (HC)15, 2, MLR (1997) (HC) 346, 1, MLR (1996) (AD) 179

Case Year: 1938

Subject: The Insurance

Delivery Date: 2018-04-17

The Insurance Act, 1938

(Act No. IV of 1938)

Claim for damage on Insurance Policy—

In a suit for damage and compensation on insurance policy the plaintiff must prove the breach of the contract and his claim for compensation on account of damage.

Inland and Overseas Ltd. Vs. Karnaphuli Insurance Company Ltd. and others. 1, MLR (1996) (AD) 442.

Section 47B— Interest on claim of insurance—When permissible—

The court has no option to allow interest on the claim of insurance under section 34 of the Code of Civil Procedure except that under section 47B of the Insurance Act, 1938 as amended by Ordinance No .XXV of 1970. The term "action" means legal action by way of suit or court proceedings as contemplated in clause 8(B) of the Insurance policy document. The period of limitation is six months from date of repudiation within which such action must commence otherwise the right to claim will be barred. The well settled principle of law is that the plaintiff must prove his own case and cannot stand on the weakness of the defence.

Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC)15.

Section 48B(l)(b)(c)—Restriction on becoming director not illegal—

In order to prevent monopolization of capital in the hands of close family relations, imposition of restriction on a person who is a director, or sponsor of any Bank or financial institution or a member of the family of such person of his becoming a director, sponsor or Chief Executive of Insurance Company is neither illegal nor violative of fundamental rights.

Nasreen Fatema and others Vs. Bangladesh and others. 2, MLR (1997) (HC) 346.

The Law of Insurance- Standard Fire Policy-Condition No. 19—

The words "pending action" have been understood in this sub-continent for over 80 years as pending suit and there is no jurisprudential backing, no unfurling of a novel proposition of law and no impelling consideration of justice and fairplay to disturb that understanding.

Sodhoran Bima Corporation Vs. Sanjib Kumar Das & others. 1, MLR (1996) (AD) 179.

The Legal Practitioners and Bar Council Act, 1965

Citation: 2, MLR (1997) (AD) 399

Case Year: 1965

Subject: Bar Council

Delivery Date: 2018-04-21

The Legal Practitioners and Bar Council Act, 1965

Chapter 11, clause (4)—Receipt of big amount as professional fee- not misconduct— Representing conflicting interests in same case- a misconduct not compoundable—

Since receipt of big amount as professional fee though disproportionate does not violate any express statutory provision it does not amount to misconduct on the part of the lawyer. Representing conflicting interest in the same case is professional misconduct. Such offence is not compoundable.

Bangladesh Bar Council Vs. Khawja Abdul Gani and another. 2, MLR (1997) (AD) 399.

THE LIMITATION ACT, 1908

(ACT NO. IX OF 1908)

[7th August, 1908]

An Act to consolidate and amend the law for the Limitation of Suits, and for other purposes.

WHEREAS it is expedient to consolidate and amend the law relating to the limitation of suits, appeals and certain applications to Courts; and whereas it is also expedient to provide rules for acquiring by possession the ownership of easements and other property; It is hereby enacted as follows:-

PART I

PRELIMINARY

Short title, extent and commencement

1. (1) This Act may be called the Limitation Act, 1908.

(2) It extends to the whole of Bangladesh.

(3) This section and section 31 shall come into force at once. The rest of this Act shall come into force on the first day of January, 1909.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(1) “applicant” includes any person from or through whom an applicant derives his right to apply:

(2) “bill of exchange” includes a hundi and a cheque:

(3) “bond” includes any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be:

(4) “defendant” includes any person from or through whom a defendant derives his liability to be sued:

(5) “easement” includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to or subsisting upon, the land of another:

(6) “foreign country” means any country other than Bangladesh 2[ * * *]:

(7) “good faith”: nothing shall be deemed to be done in good faith which is not done with due care and attention:

(8) “plaintiff” includes any person from or through whom a plaintiff derives his right to sue:

(9) “promissory note” means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight:

(10) “suit” does not include an appeal or application: and

(11) “trustee” does not include a benamider, a mortgagee remaining in possession after the mortgage has been satisfied, or a wrong-doer in possession without title.

PART II

LIMITATION OF SUITS, APPEALS AND APPLICATIONS

Dismissal of suits, etc, instituted, etc, after period of limitation

3. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence.

Explanation.-A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator.

Where Court is closed when period expires

4. Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.

Extension of period in certain cases

5. Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation - The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court Division in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.

Legal disability

6. (1) Where a person entitled to institute a suit or proceeding or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or proceeding or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefore in the third column of the first schedule or in section 48 of the Code of Civil Procedure, 1908.

(2) Where such person is, at the time from which the period of limitation is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period, after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed.

(3) Where the disability continues up to the death of such person, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed.

(4) Where such representative is at the date of the death affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.

Illustrations

(a) The right to sue for the hire of a boat accrues to A during his minority. He attains majority four years after such accruer. He may institute his suit at any time within the years from the date of his attaining majority.

(b) A right to sue accrues to Z during his minority. After the accruer, but while Z is still a minor, he becomes insane. Time runs against Z from the date when his insainity and minority cease.

(c) A right to sue accrues to X during his minority. X dies before attaining majority, and is succeeded by Y, his minor son. Time runs against Y from the date of his attaining majority.

Disability of one of several plaintiffs or applicants

7. Where one of several persons jointly entitled to institute a suit or proceeding or make an application for the execution of a decree is under any such disability, and discharge can be given without the concurrence of such person, time will run against them all: but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

Illustrations

(a) A incurs a debt to a firm of which B, C and D are partners. B is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.

(b) A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G is a minor. Time will not run against any of them until either E or F becomes sane, or G attains majority.

Special exceptions

8. Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.

Illustrations

(a) A, to whom a right to sue for a legacy has accrued during his minority, attains majority eleven years after such accruer. A has, under the ordinary law, only one year remaining within which to sue. But under section 6 and this section an extension of two years will be allowed him, making in all a period of three years from the date of his attaining majority, within which he may bring his suit.

(b) A right to sue for an hereditary office accrues to A who at the time is insane. Six years after the accruer A recovers his reason. A has six years, under the ordinary law, from the date when his insanity ceased within which to institute a suit. No extension of time will be given him under section 6 read with this section.

(c) A right to sue as landlord to recover possession from a tenant accrues to A, who is an idiot. A dies three years after the accruer, his idiocy continuing up to the date of his death. A's representative in interest has, under the ordinary law, nine years from the date of A's death within which to bring a suit. Section 6 read with this section does not extend that time, except where the representative is himself under disability when the representation devolves upon him.

Continuous running of time

9. Where once time has begun to run, no subsequent disability or inability to sue stops it:

Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues.

Suits against express trustees and their representatives

10. Notwithstanding anything hereinbefore contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.

For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose, and the manager of any such property shall be deemed to be the trustee thereof.

Suits on foreign contracts

11. (1) Suits instituted in Bangladesh on contracts entered into in a foreign country are subject to the rules of limitation contained in this Act.

(2) No foreign rule of limitation shall be a defence to a suit instituted in Bangladesh on a contract entered into in a foreign country, unless the rule has extinguished the contract and the parties were domiciled in such country during the period prescribed by such rule.

PART III

COMPUTATION OF PERIOD OF LIMITATION

Exclusion of time in legal proceedings

12. (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

Exclusion of time of defendant’s absence from Bangladesh and certain other territories

13. In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from Bangladesh and from the territories beyond Bangladesh under the administration of the 3[ Government] shall be excluded.

Exclusion of time of proceeding bona fide in Court without jurisdiction

14. (1) In computing the period of limitation prescribed for any suit, the time during which the plantiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

Explanation I - In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.

Explanation II - For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.

Explanation III - For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

Exclusion of time during which proceedings are suspended

15. (1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

(2) In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded.

Exclusion of time during which proceedings to set aside execution-sale are pending

16. In computing the period of limitation prescribed for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.

Effect of death before right to sue accrues

17. (1) Where a person, who would, if he were living, have a right to institute a suit or make an application, dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or making such suit or application.

(2) Where person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, the period of limitation shall be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute or make such suit or application.

(3) Nothing in sub-sections (1) and (2) applied to suits to enforce rights of pre-emption or to suits for the possession of immoveable property or of an hereditary office.

Effect of fraud

18. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded,

or where any document necessary to establish such right has been fraudulently concealed from him,

the time limited for instituting a suit or making an application-

(a) against the person guilty of the fraud or accessory thereto, or

(b) against any person claiming through him otherwise than in good faith and for a valuable consideration,

shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.

Effect of acknowledgement in writing

19. (1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.

(2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but, subject to the provisions of the Evidence Act, 1872, oral evidence of its contents shall not be received.

Explanation I - For the purposes of this section an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time

for payment, delivery, performance or enjoyment has not yet come, or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to a set-off, or is addressed to a person other than the person entitled to the property or right.

Explanation II - For the purposes of this section, “signed” means signed either personally or by an agent duly authorized in this behalf.

Explanation III - For the purposes of this section an application for the execution of a decree or order is an application respect of a right.

Effect of payment on account of debt as of interest on legacy

20. (1) Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made:

Provided that, save in the case of a payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of, or in a writing signed by the person making the payment.

Agent of persons under disability

21. (1) The expression “agent duly authorised in his behalf,” in sections 19 and 20, shall, in the case of a person under disability, include his lawful guardian, committee or manager, or an agent duly authorised by such guardian, committee or manager to sign the acknowledgement or make the payment.

(2) Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgment signed or of a payment made by, or by the agent of, any other or others of them.

(3) For the purposes of the said sections-

(a) an acknowledgment signed, or a payment made, in respect of any liability, by, or by the duly authorised agent of, any widow or other limited owner of property who is governed by the Hindu law, shall be a valid acknowledgment or payment, as the case may be, as against a reversioner succeeding to such liability; and

(b) where a liability has been incurred by, or on behalf of, a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

Effect of substituting or adding new plaintiff or defendant

22. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

Continuing breaches and wrongs

23. In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues.

Suit for compensation for act not actionable without special damage

24. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.

Illustration

A owns the surface of a field. B owns the subsoil. B digs coal thereout without causing any immediate apparent injury to the surface, but at last the surface subsides. The period of limitation in the case of a suit by A against B runs from the time of the subsidence.

Computation of time mentioned in instruments

25. All instruments shall, for the purposes of this Act, be deemed to be made with reference to the Gregorian calendar.

Illustrations

(a) A Hindu makes a promissory note bearing a Native date only, and payable four months after date. The period of limitation applicable to a suit on the note runs from the expiration of four months after date computed according to the Gregorian calendar.

(b) A Hindu makes a bond, bearing a Native date only, for the repayment of money within one year. The period of limitation applicable to a suit on the bond runs from the expiration of one year after date computed according to the Gregorian Calendar.

PART IV

ACQUISITION OF OWNERSHIP BY POSSESSION

Acquisition of right to easements

26. (1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years,

and where any way or watercourse, or the use of any water, or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption, and for twenty years,

the right to such access and use of light or air, way, water-course, use of water, or other easement shall be absolute and indefeasible.

Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

(2) Where the property over which a right is claimed under sub-section (1) belongs to the Government, that sub-section shall be read as if for the words “twenty years” the words “sixty years” were substituted.

Explanation - Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Illustrations

(a) A suit is brought in 1911 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption from 1st January, 1890 to 1st January, 1910. The plaintiff is entitled to judgment.

(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff, on one occasion during the twenty years, had asked his leave to enjoy the right. The suit shall be dismissed.

Exclusion in favour of reversioner of servient tenement

27. Where any land or water upon, over or from which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or any term of years exceeding three years from the granting thereof, the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interest or term, resisted by the person entitled, on such determination, to the said land or water.

Illustration

A sues for a declaration that he is entitled to a right of way over B's land. A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C, a Hindu widow, had a life interest in the land, that on C's death B became entitled to the land, and that within two years after C's death he contested A's claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section, has only proved enjoyment for fifteen years.

Extinguishment of right to property

28. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

PART V

SAVINGS AND REPEALS

Savings

29. (1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(2) Where any special 4[ * * *] law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provision of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special 5[ * * *] law-

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special 6[ * * *] law; and

(b) the remaining provisions of this Act shall not apply.

(3) Nothing in this Act shall apply to suits under the Divorce Act.

(4) Sections 26 and 27 and the definition of “easement” in section 2 shall not apply to cases arising in territories to which the Easements Act, 1882, may for the time being extend.

[Repealed]

30-31. [Repealed by section 3 and Schedule of the Repealing and Amending Act, 1930 (Act No. VIII of 1930).]

32. [Repealed by section 3 and Second Schedule of the Second Repealing and Amending Act, 1914 (Act No. XVII of 1914).]

-------------------------------------------------------------------------

1. Throughout this Act, except otherwise provided, the words “Bangladesh”, `Muslim` and `the High Court Division` were substituted, for the words `Pakistan`, `Muhammadan` and `High Court` or `a High Court` or `any High Court` respectively by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

2 .The comma and words “, but includes as Acceding State” were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

3. The word `Government` was substituted, for the words `Central Government` by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)

4. The words “or local” were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

5 .The words “or local” were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

6.The words “or local” were omitted by section 3 and 2nd Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973).

Source : Ministry of Law, Justice and Parliamentary Affairs

The Limitation Act 1908

Citation: 2 MLR (AD) (1997) 231

Case Year: 1908

Subject: The Limitation

Delivery Date: 2018-04-25

The Limitation Act 1908

Section 5—

Satisfactory explanation of delay is the pre-requisite for condoning the delay in filing appeal.

Additional Deputy Commissioner, (Rev.) Narayangonj Vs. Dr. Mir Abdul Hakim being dead his heirs Mir Abu Shahid and others 2 MLR (AD) (1997) 231.

The Local Government (Union Parishad) Ordinance 1983

Citation: 1, MLR (1996) (AD) 289, 3,MLR(1998) (HC) 221, 5 MLR (2000) (AD) 298, 1, MLR (1996) (AD) 223, 2, MLR (1997) (HC) 250, 3,MLR(1998) (HC) 52, 3, MLR (1998) (HC) 236, 4, MLR (1999) (HC) 233

Case Year: 1983

Subject: The Local Government (Union Parishad)

Delivery Date: 2018-04-17

The Local Government (Union Parishad)

Ordinance 1983

Section 3- The Declaration and Alteration of limits of Union Rules, 1983— Rule 2(1)— Power of Deputy Commissioner to divide and reconstitute rural areas—

The Deputy Commissioner has the authority under section 3 of the Local Government (Union Parishads) Ordinance, 1983 to divide and reconstitute the rural areas into union. Under rule 2(1) of the Declaration and Alteration of Limits of Union Rules, 1983 the Government may also give direction to the Deputy Commissioner to act as such. The Government like any other person is not infallible and on occasion it can vary, cancel or rescind its order by showing reason therefor.

Abdul Maleque Vs. Secretary Ministry of Local Government 1, MLR (1996) (AD) 289.

Rule 6— Allegation of rigging in election dispute—

The remedy in respect of allegations of rigging in the election of the Union Parishad and the Election Commission's rejecting the petition for cancellation of the election being election dispute, is to be sought in a properly constituted election petition before the Election Tribunal and not in the writ jurisdiction of the High Court Division.

Asaduzzaman (Md) Vs. Chief Election Commissioner and others. 3,MLR(1998) (HC) 221.

Rule 6- Election dispute— Recounting of ballot papers—

Unless a very strong foundation is laid by evidence on record requiring recounting of ballot papers for effective adjudication of the dispute, recounting of ballot papers should not be resorted to as a matter of course.

Abdul Latif Bepari Vs. Md. Nurul Islam Howlader & others. 5 MLR (2000) (AD) 298.

Section 7(2)(e)— Disqualification for election—

A fulltime teacher of a non-government Secondary School is not disqualified for being Chairman of Union Parishad.

Mqfizul Huq Vs. Mostafizur Rahman and others. 1, MLR (1996) (AD) 223.

Section 7(2)(f)—Cement dealer not disqualified for U.P. Chairman election—

Government does not mean and include a statutory body like the T.C.B. and as such a cement dealer of T.C.B is not disqualified to be Chairman of Union Parishad.

Mosharrqf Hossain Vs. Serqjul Hoque and others. 2, MLR (1997) (HC) 250.

Section 7(2)(G)—Loan money does not include interest in relation to disqualification—

Loan money includes the principal and not the interest thereof. When the son repaid the loan money taken by his father since deceased, the son cannot be a defaulter for non-payment of the interest accruing on the principal. So long the outstanding dues are not settled upon the son and duly notified therefor, he cannot be a defaulter as contemplated by section 7(2)(G) of the Ordinance.

Abdul Jalil Munshi Vs. Returning Officer and others. 3,MLR(1998) (HC) 52.

Section 7(2)(i)— Disqualification of a candidate for election—

The communication between private persons as to the candidate's being a defaulter as contemplated under section 7(2)(i) of the Ordinance can not be taken by the court into consideration towards forming valid ground of disqualification.

Atiar Rahman Gazi Vs. Chief Election Commissioner and others. 3, MLR (1998) (HC) 236.

Section 6 and 23— Power of the Election Commission to hold elections—

The right of the Chairman to his office is not fundamental right and he is not a person in the service of the Republic. The Election Commission has the absolute power and authority to give schedule for holding elections under the law. Application under article 102 of the Constitution does not lie to interfere with the authority of the Election Commission when it does not offend any fundamental rights.

Akkel Ali Mollah Vs. Government of Bangladesh represented by the Secretary, Local Government and others. 4, MLR (1999) (HC) 233.

The Marine Insurance Act, 1906

Citation: 1, MLR (1996) (AD) 262

Case Year: 1906

Subject: The Marine Insurance

Delivery Date: 2018-04-22

The Marine Insurance Act, 1906

Section 27(3) and 69(3)— Suit for compensation for damage of vessel—

In a case for compensation for damage of vessel on Insurance the burden is on the plaintiff to prove each and every item of his claim. The market value and insured value of a vessel may rarely be the same and as such dual valuation clause has important role to play in determining the amount of compensation. Telex is admissible in evidence.

Sadharan Bima Corporation Vs. Bengal Liner Ltd. and others. 1, MLR (1996) (AD) 262.

THE MUSLIM MARRIAGES AND DIVORCES (REGISTRATION) ACT, 1974

THE MUSLIM MARRIAGES AND DIVORCES (REGISTRATION) ACT, 1974

(ACT NO. LII OF 1974).[24th July, 1974]

An Act to consolidate and amend the law relating to Registration of Muslim marriages and divorces.

WHEREAS it is expedient to consolidate and amend the law relating to registration of Muslim marriages and divorces;

It is hereby enacted as follows:-

Short title and application

1. (1) This Act may be called the Muslim Marriages and Divorces (Registration) Act, 1974.

(2) It applies to all Muslim citizens of Bangladesh wherever they may be.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(a) “Inspector-General of Registration” and “Registrar” respectively mean the officers so designated and appointed under the Registration Act, 1908 (XVI of 1908);

(b) “prescribed” means prescribed by rules made under this Act.

Registration of marriages

3. Notwithstanding anything contained in any law, custom or usage, every marriage solemnized under Muslim law shall be registered in accordance with the provisions of this Act.

Nikah Registrars

4. For the purpose of registration of marriages under this Act, the Government shall grant licences to such number of persons, to be called Nikah Registrars, as it may deem necessary for such areas as it may specify:

Provided that not more than one Nikah Registrar shall be licensed for any one area 1[ :

Provided further that the Government may, whenever it deems fit so to do, extend, curtail or otherwise alter the limits of any area for which a Nikah Registrar has been licensed.]

Jurisdiction under this Act

2[ 5A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act No. V of 1898), an offence under this Act shall be triable by a Magistrate of the first class.]

Solemnization of a marriage to be reported and registered

3[ 5. (1) Where a marriage is solemnized by the Nikah Registrar himself, he shall register the marriage at once.

(2) Where a marriage is solemnized by a person other than the Nikah Registrar, the bridegroom of the marriage shall report it to the concerned Nikah Registrar within thirty days from the date of such solemnization.

(3) Where solemnization of a marriage is reported to a Nikah Registrar under sub-section (2), he shall register the marriage at once.

(4) A person who contravenes any provision of this section commits an offence and he shall be liable to be punished with simple imprisonment for a term which may extend to two years or with fine which may extend to three thousand taka, or with both.]

Registration of divorces

6. (1) A Nikah Registrar may register a divorce effected under Muslim Law within his jurisdiction on application being made to him for such registration.

(2) An application for registration of a divorce shall be made orally by the person or persons who has or have effected the divorce:

Provided that if the woman be a parda-nashin, such application may be made by her duly authorised vakil.

(3) The Nikah Registrar shall not register a divorce of the kind known as Talaq-i-tafweez except on the production of a document registered under the Registration Act, 1908 (XVI of 1908), by which the husband delegated the power of divorce to the wife or of an attested copy of an entry in the register of marriages showing that such delegation has been made.

(4) Where the Nikah Registrar refuses to register a divorce, the person or persons who applied for such registration may, within thirty days of such refusal, prefer an appeal to the Registrar and the order passed by the Registrar on such appeal shall be final.

Manner of registration

7. The Nikah Registrar shall register a marriage or divorce in such manner as may be prescribed.

Registers

8. Every Nikah Registrar shall maintain separate registers of marriages and divorces in such forms as may be prescribed and all entries in each such register shall be numbered in a consecutive series, a fresh series being commenced at the beginning of each year.

Copies of entry to be given to parties

9. On completion of the registration of any marriage or divorce, the Nikah Registrar shall deliver to the parties concerned an attested copy of the entry in the register, and for such copy no charge shall be made.

Superintendence and control

10. (1) Every Nikah Registrar shall perform the duties of his office under the superintendence and control of the Registrar.

(2) The Inspector-General of Registration shall exercise a general superintendence over offices of all Nikah Registrars.

Revocation or suspension of a license

11. If the Government is of the opinion that a Nikah Registrar is guilty of any misconduct in the discharge of his duties or has become unfit or physically incapable to discharge his duties, it may, by order in writing, revoke his licence, or suspend his licence for such period, not exceeding two years, as may be specified in the order :

Provided that no such order shall be made unless the Nikah Registrar has been given a reasonable opportunity of showing cause why that order should not be made.

Custody of registers

12. Every Nikah Registrar shall keep safely each register maintained by him under section 8 until the same is filled, and shall then or earlier if he leaves the district or ceases to hold a licence, make over the same to the Registrar for safe custody.

Inspection of registers

13. Any person may, on payment of the prescribed fee, if any, inspect at the office of the Nikah Registrar or of the Registrar any register kept in such office or obtain a copy of any entry therein.

Power to make rules

14. (1) The Government may, by notification in the official Gazette, make rules to carry into effect the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) qualifications to be required from persons to whom licences under section 4 may be granted;

(b) fees payable to a Nikah Registrar for registration of a marriage or divorce;

Amendment of Muslim Family Laws Ordinance, 1961 (VIII of 1961)

15. In the Muslim Family Laws Ordinance, 1961 (VIII of 1961),-

(a) in section 3, in sub-section (1), the comma and words “, and the registration of Muslim marriages shall take place only in accordance with those provisions” shall be omitted;

(b) section 5 shall be omitted;

(c) in section 6, in sub-section (1), for the words “under this Ordinance” the words, comma, figures and brackets “under the Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974)” shall be substituted.

Repeal

16. The Muslim Divorces Registration Act, 1876 (Ben. Act I of 1876), is hereby repealed.

Provision relating to existing Nikah Registrars

17. All Nikah Registrars licensed under the Muslim Family Laws Ordinance, 1961 (VIII of 1961), before the commencement of this Act, shall be deemed to have been licensed as Nikah Registrars under this Act.

1 The colon (:) was substituted for the full stop (.) and the proviso was inserted by section 2 of the Muslim Marriages and Divorces (Registration) (Amendment) Ordinance, 1982 (Ordinance No. XLIX of 1982)

2 Section 5A was inserted by section 3 of the Muslim Marriages and Divorces (Registration) (Amendment) Act, 2005 (Act No. IX of 2005)

3 Section 5 was substituted by section 2 of the Muslim Marriages and Divorces (Registration) (Amendment) Act, 2005 (Act No. IX of 2005)

Source : Ministry of Law, Justice and Parliamentary Affairs

The Muslim Marriages and Divorces (Registration) Rules, 1975

Citation: 2, MLR (1997) (HC) 105, 25 DLR 227, 21 DLR, 213, 23 DLR 181, 33 DLR 379, 21 DLR 733

Case Year: 1975

Subject: The Muslim Marriages and Divorces

Delivery Date: 2018-04-22

The Muslim Marriages and Divorces

(Registration) Rules, 1975

Rule 33(3)— Association of Nikah Registrars—Recognition of—

It is within the discretion of the Government to recognise the Association which commands majority support of the Nikah Registrars in case where there exist more than one such Association. When, such discretion is exercised in accordance with law no interference is warranted.

Bangladesh Muslim Marriage Registrar and Kazi Samity represented by its President Pirjada Alhaj Moulana Kazi Syed Shariatullah Vs. Ministry of Law, Justice and Parliamentary Affairs & others. 2, MLR (1997) (HC) 105.

Section 7(4)— No consequence follows from failure of Chairman—

Though sub-section (4) of section 7 of the Muslim Family Laws Ordinance, 1961 provides that upon receipt of written notice of pronouncement of talaq the Chairman shall constitute Arbitration Council within thirty days to take all possible steps for reconciliation between the parties, nothing has been mentioned therein or anywherelse in the Ordinance as to what will happen if upon receipt of such written notice the Chairman fails to constitute. Arbitration Council or the Council so constituted fails to take any steps. Therefore the failure of the Chairman or the Arbitration Council is inconsequential.

Abdus Sobhan Sarker Vs. Md. Abdul GhanL (1973) 25 DLR 227.

Section 5— Marriage to be registered- Non-registration does not affect validity—

Section 5 of the Muslim Family Laws Ordinance, 1961 makes it absolutely necessary that a marriage solemnised under the Muslim Law shall be registerd. But the marriage validly solemnised is not affected by its non-registration.

Abdullah Vs. Rokeya Khatoon. (1969) 21 DLR, 213.

Section 6(5)— Second marriage without permission— Consequence of—

Second marriage during the subsistence of the first one without permission as required under section 6(5} of the Muslim Family Laws Ordinance, 1961 is liable to prosecution entailing punishment of improsonment or fine or both.

Ahmed Mia Shah Vs. Kazi Abdul Motaleb. (1971) 23 DLR 181.

Abetment not punishable—

Section 6(5) of the Ordinance 1961 does not provide for conviction for abetting an offence as mentioned therein.

Abdul Halim Patiader and others Vs. M. RahmatAli & others. (1981) 33 DLR 379.

Section 7(1)— Talaq becoming effective— on expiry of ninety days—

Once after pronouncemnt of talaq a written notice thereof as required under sub-section (I) of section 7 of the Muslim Family Laws Ordinance, 1961 is delivered to the Chairman concerned, the talaq that is otherwise valid, will be effective after the expiry of ninety days of such notice or if the wife be pregnant at the time of the pronouncement of the talaq till the pregnancy ends. Therefore, so far the talaqs are concerned, the Arbitration Council has no function except taking steps for reconciliation between the parties. But the non-compliance with the provisions of section 7(1) of the Ordinance makes the talaq legally ineffective as in the eye of law the marriage between the couple in the circumstances subsists.

Abdul Aziz Vs. Rezia Khatoon. (1969) 21 DLR 733.

The Muslim Personal Law (Sharlat) Application Act, 1937

Citation: 4, MLR (1999) (AD) 70

Case Year: 1937

Subject: The Muslim Personal Law (Sharlat) Application

Delivery Date: 2018-04-22

The Muslim Personal Law (Sharlat)

Application Act, 1937

Section 2—

By section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the Muslim personal laws have been made applicable to the parties who are Muslims in deciding the disputes relating to marriage, divorce, maintenance etc. (para 102 per Mustafa Kamal-J.)

Hejzur Rahman (MdJ Vs. Shamsun Nahar Begum and another. 4, MLR (1999) (AD) 70.

The Non-Agricultural Tenancy Act, 1949

Citation: 3, MLR (1998) (AD) 145, 5 MLR (2000) (AD) 19, 5 MLR (2000) (HC) 140, 35 DLR (AD) 230, 39 DLR 233, 39 DLR 233

Case Year: 1949

Subject: The Non-Agricultural Tenancy

Delivery Date: 2018-04-24

The Non-Agricultural Tenancy Act, 1949

(Act No. XXHI of 1949)

Section 24 and Section 85(2)— Right of pre-emption- Whether available in respect of land held by tenant under Government for 99 years lease. The State Acquisition and Tenancy Act, 1950— Section 81A(2)—

The land held by tenant under 99 years lease under the Government, is not subject to pre-emption as contemplated under section 85(2) of the Non-Agricultural Tenancy Act, 1949. Therefore the lands of the Dhanmondi Residential area are not subject to pre-emption.

Mosaddeque Hossain (Md.) Vs. Dr. Esmat Mirza and others. 3, MLR (1998) (AD) 145.

Section 24- Right of pre-emption of cosharer of land-After partition—

Right of pre-emption under section 24 of the Non-Agricultural Tenancy Act, 1949 is available to the co-sharer of the land while such right unde'r section 96 of the State Acquisition and Tenancy Act, 1950 is available to cosharer of the tenancy. After the final decree in partition suit finally determining the right of the cosharers in the land, the right of preemption under section 24 of the Non-Agricultural Tenancy Act is not available to the cosharer. The plea of execution of the final decree is immaterial.

Shaji uddin Chowdhury (Md.) VS. Md. Abdul Karim and others. 5 MLR (2000) (AD) 19.

Section 24— Application of Pre-emption— Conversion into one under section 96 of SAT Act, 1950—

A party cannot suffer for the mistake of his lawyer. Regard being had to the intent and purpose of both section 24 of the Non-Agricultural Tenancy Act and section 96 of the State Acquisition and Tenancy Act preventing intrusion of strangers to the joint property, conversion of application under section 24 of the Non-Agricultural Tenancy Act into one under section 96 of the State Acquisition and Tenancy Act, 1950 together with the deposit of balance compensation after the amendment is allowed by the court are held to be valid and the application is held not barred by limitation. When transferee of a cosharer is made party, the transferor co-sharer having no subsisting interest in the tenancy is not a necessary party.

Abdus Sobhan Sheikh Vs. Kazt Moidana Jahedullah & others. 5 MLR (2000) (HC) 140.

Section 24— Right of preemption— Partial pre-emption not permissible—

The provisions of pre-emption in section 24 of the Non-Agricultural Tenancy Act, 1949 shall not apply to transfer to a cosharer in the tenancy whose existing interest has accrued otherwise than by purchase. Partial pre-emption is not permissible under section 24 of the non-Agricultural Tenancy Act, 1949. Transfer of portion or share of non-agricultural land to a stranger opens right of pre-emption to the cosharer. But no such right is available where land is transferred to a cosharer in the tenancy.

S.M. Bashiruddin Vs. Zahurul Islam Chowdhury and another. (1983) 35 DLR (AD) 230.

Section 24— Has no application to a case of agricultural land out side Municipal area—

Section 24 of the Non-Agricultural Tenancy Act, 1949 provides for filing application for pre-emption in respect of non-agricultural land within a Municipal area and this section has no application to a case of agricultural land situated out side the municipal area.

Abdul Mqjid Vs. Satya Bhola Nath. 39 DLR 233.

No right of preemption to contiguous owner under section 24—

Contiguous owner cannot claim preemption under section 24 of the Non-Agricultural Tenancy Act, 1949.

Abdul Majid Vs. Satya Bhoia Nath. 39 DLR 233.

The Non-Government Secondary School Teachers Terms and Conditions of ServiceRegulations 1979

Citation: 1, MLR (1996) (HC) 196, 5 BLD (HCD) 277

Case Year: 1979

Subject: The Non-Government Secondary School Teachers Terms and Conditions of Service

Delivery Date: 2018-04-24

The Non-Government Secondary

School Teachers Terms and

Conditions of ServiceRegulations 1979

Teacher of Non-Govt. Secondary school under Mill management is not worker—

A teacher of a non-government secondary school set-up and managed by a Mill is not a worker within the meaning of section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 and as such his service can not be terminated under section 19 of the Act. Terms and conditions of service of such a teacher are governed by the Regulations, 1979 made by the Board of Intermediate and Secondary Education. The Mill not being a local authority or performing functions in connection with affairs of the Republic is not subject to the writ jurisdiction of the High Court Division.

Md. Abdur Rahman Vs. Secretary Ministry of Industries 1, MLR (1996) (HC) 196.

Section 24— Separation of jama subsequent to disputed purchase does not bar preemption—

Separation of Jarna in favour of the opposite party No. 1 having been made subsequent to the disputed transfer does not affect the petitioner's right of preemption in respect of the disputed transfer,

Abici Ali Vs. Maleka Khatun and others. 5 BLD (HCD) 277.

THE NOTE-BOOKS (PROHIBITION) ACT, 1980

(ACT NO. XII OF 1980).

[9th April, 1980]

An Act to prohibit printing, publication, import, distribution and sale of note-books on text-books for primary schools and secondary schools up to Class VIII.

WHEREAS it is expedient to prohibit printing, publication, import, distribution and sale of note-books on text-books for primary schools and secondary schools up to Class VIII;

It is hereby enacted as follows:-

Short title

1. This Act may be called the Note-Books (Prohibition) Act, 1980.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(a) “Board” means the Bangladesh School Text-Book Board established under the School Text-Book Act, 1954 (E.P. Act XIV of 1954);

(b) “note-book” means any printed book that contains notes, annotations, explanations, comments, references, answers or solutions to any questions on any subject or matter in, or translations or paraphrases of any part of, any text-book but does not include any such book published by, or under the authority of, the Board; and

(c) “text-book” means any text-book for primary schools or secondary schools up to Class VIII published by, or under the authority of, the Board.

Prohibition of printing, etc, of the note-books 4Penalty

3. (1) No person shall print, publish, import, sell, distribute or in any manner put into circulation or keep for printing, publication, sale, distribution or circulation of any note-book.

(2) Nothing in sub-section (1) shall apply to any notes, comments or explanations dictated or given in writing by a teacher in a class for the use of the students of that class:

Provided that such notes, comments or explanations shall not be reproduced in writing or otherwise and circulated for the use of any other person.

Penalty

4. (1) Whoever contravenes any provision of section 3 shall be punishable with rigorous imprisonment for a term which may extend to seven years, or with fine which may extend to twenty five thousand Taka, or with both.

(2) A Court trying the contravention of any provision of section 3 shall order the forfeiture to Government of every copy of the note-book in respect of which such provision has been contravened and may also order the forfeiture to Government of the printing press found printing such note-book.

(3) Where any provision of section 3 has been contravened by a firm, company or other body corporate, every partner, director, manager, secretary or other officer thereof shall, if actively concerned in the conduct of the business of such firm, company or body corporate, be deemed to have contravened such provision unless he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

Power to make rules

5. The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

Source : Ministry of Law, Justice and Parliamentary Affairs

The Partition Act, 1893

Citation: 1 BLT (AD)-34, 4 BLT (HCD)- 109, 6BLT (AD)-233, 7 BLT (HCD)-80, 7 BLT (AD)-335, 7 BLT (HCD)-43, 2BLT (HCD)-139.

Subject: Partition

Delivery Date: 1970-01-01

The Partition Act, 1893 [IV of 1893]

Section-4(a) ‘Dwelling house’-co-sharer’s attachment to ancestral house intention of the legislators to make the provisions of S. 4 of the Partition Act

After considering the modes of our people, the co-sharers attachment to their ancestral house and their anxiety to preserve the purdah and privacy of the members and inmates of the undivided dwelling house, the legislators made the provisions of section 4 of the Partition Act. The expression a dwelling house belonging to an undivided family is to be liberally construed. We have done so in Sree Jugal Kishori Sarker Vs. Azizur Rahman & Ors. 40 DLR (AD) 150. A co-sharer’s prayer to buy up a stranger-purchaser may not be refused on a technical ground. [Para-10]

(b) There is no time limit for filing an application under section 4 of the Partition Act - The appellate Court’s finding that “That suit land is no doubt a homestead, but is not a dwelling house of an undivided family” is utterly misconceived. In the suit land an undivided dwelling house is situated. The defendant himself claimed to be residing in a portion there. The suit property never lost its character of an undivided homestead because there had admittedly been not partition by metes and bounds by any previous arrangement. The impartible character of the suit property remained undisturbed when the suit was filed in 1962. There is no time limit for filing an application under section 4 of the Partition Act. In the instant case, the plaintiffs claim cannot be called sale, [Para-11]

(c) To buy-out a stranger purchaser— Inordinate delay in filing application under S-4 of Partition Act from the date of purchase consequences—What involves a kind of forced sale for the stranger purchaser

If an application under section 4 of the Partition Act is filed to buy out a stranger purchaser after an inordinate delay from the date of the purchase, then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act, it involves a kind of forced sale for the stranger purchaser. And hence, the court would, in equity, determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser. [Para- 11]

Syesta Bibi and Other’s Vs. Juma Shah and Other’s 1 BLT (AD)-34

Section - 4

Partition suit by transferee of share in dwelling house — the plaintiff petitioner is in possession of .5612 acres of land in ejmali by registered kabala, filed the present partition suit — opposite party No. 1 as defendant No. 1 contested the suit, contending inter alia that he has been possessing the suit land as co-sharer and suit land being dwelling house that the defendant is ready to purchase the share of the plaintiff-petitioner. The learned trial court decreed the suit in part with direction that the defendant may purchase .04 decimals of homestead having the dwelling hut and courtyard on it and the plaintiff will get .5212 decimals of land out of the jote —the lower appellate court reversing the judgment and decree of the trial court in the manner and on the finding that the plaintiff is a stranger in the suit land, if plaintiff is allotted shaham in the ejmali homestead and ejmali tank the members of the Hindu family cannot conveniently use the homestead and the tank which is a cartilage of their

dwelling house, trial court ought to have allowed pre-emption in favour of the contesting defendant No. 1 in full—Held : It appears that the appellate court while reversing arrived at its own independent findings on the issues involved in the case -- rule is therefore discharged. [Paras- 15 & 16]

Hafizuddin Bepari Vs. Nepal Chandra Das & Ors. 4 BLT (HCD)- 109

Section - 4

Delivery of possession by the Advocate Commissioner

The Advocate Commissioner while delivering possession to the parties in a partition suit shall abide by the final decree and not by the preliminary decree. [Para-6]

Md. Shahjalal & Ors Vs. Sultan Gazi & Ors 6BLT (AD)-233

Section-4

Applicability—The Kha schedule property may be a dwelling house but it was not under direct occupation of the plaintiff and defendant No. 1 and the plaintiff was not residing in that house when the suit for partition was filed and there is no evidence that the undivided family occupied Kha schedule property—we hold that Section 4 of the Partition Act has no manner of application in the present case. [Para-12]

Bina Roy Chowdhury Vs. Amullya Roy Chowdhury & Ors. 7 BLT (HCD)-80

Exceptions: When all property need not be included

The general rule that a partition suit should embrace all the joint properties Of the parties concerned is indeed a rule of convenience. If properties are left out in a partition suit it brooks further litigation. It is true that this rule is relaxable. But there are specific situations calling for relaxation. They are generally (a) where different portions of the property lie in different jurisdictions, or (b) when some portion of the property is at the time incapable of partition, or (c) when the property from its nature is impartible, or (d) when property is held jointly with strangers who cannot be joined as parties to a general suit for partition, or (e) where co-tenants, by mutual agreement, decide to make partition of a part of the joint property retaining the rest in common. [Para-7]

Nurul Afsar Vs. Rafiqul Ahmed 7 BLT (AD)-335

Civil Justice in respect of Partition

In a partition suit the rights of the parties are finally determined in the preliminary decree by which specific sahams are allotted. The final decree is lust a follow-up of the preliminary decree whereby actual partition of the ejmali property is effected through the Court in execution of the preliminary decree. In effecting partition by metes and bounds the existing possession of the parties is usually maintained as for practicable and in so far it is not inconsistent with the decree. Possession or no possession in a particular plot or plots of an ejmali property cannot therefore, be a ground to refuse a decree for partition once the plaintiffs title and possession is found in any portion of the suit property. [Para-6J

Md. Azirnuddin Talukder & Ors. Vs. Md. Abdul Mannan Talukder & Ors. 7 BLT (HCD)-43

Principle—Partition Suit

The cause of action for a partition suit being recurring one the dismissal of a partition suit for default does not bar again a suit for partition. Para- 10

Abdul Jabbar Vs Sultan Mia & Ors 2BLT (HCD)-139.

The Premises Rent Control Ordinance, 1963

Citation: 1, MLR (1996) (AD) 141, 1, MLR (1996) (AD) 392, 1, MLR (1996) (HC) 33, 2, MLR (1997) (AD) 112, 2, MLR (1997) (AD) 380, 2, MLR (1997) (HC) 253, 4, MLR (1999) (AD) 410, 5 MLR (2000) (AD) 295, 40 DLR (AD) 89, 4 BLD (AD) 74, 5 BLD (AD) 97, 6 BLD (AD) 354, 4

Case Year: 1963

Subject: The Premises Rent Control

Delivery Date: 2018-04-24

The Premises Rent Control Ordinance, 1963

(Ord. XX of 1963)

Sections 8, 9, 18 (6), 19- Whether rent includes WASA charge and nonpayment thereof renders a tenant defaulter—

Whatever amount is paid by the tenant to the landlord In terms of contract for the amenities provided by the Land Lord in connection with use and occupation of the premises forms part of rent within the meaning of section 18(6). WASA charge not being payable to the Land Lord is not rent and non-payment thereof does not render a tenant defaulter and liable to eviction.

Continental Corporation (Pvt) Ltd. Vs. Alhaj Md. Ismail 1, MLR (1996) (AD) 141.

Determination of tenancy by serving notice under section 1O6 of the Transfer of Property Act.

Inadequacy of the notice u/s 106 of the T.P. Act allowing 15 days time to vacate the premises used for manufacturing purpose when not taken earlier, can not be taken at the revisional stage for the first time.

Nasiruddin Ahmed Vs. Most Nasima Kliatoon. 1, MLR (1996) (AD) 392.

Tenancy- defaulter- Advance— Outstanding—

The tenant cannot be considered defaulter when advance amount paid remains unadjusted. The concurrent finding of fact can be interfered with in revision when such finding is otherwise perverse and contrary to the evidence on record.

Golam Mahiuddin Vs. Md. Alauddin Chowdhwy. 1, MLR (1996) (HC) 33.

Tenant becoming defaulter—Plea of waiver—

A teitant who fails to pay rent within the stipulated time as per agreement becomes a defaulter and is liable to be ejected and he is riot entitled to the protection under section 18 of the Ordinance. However he can plead waiver as to the right to receive the rent otherwise than in terms oT the agreemment.

Parimol Ratan Das Vs. Mrs. Asima Khatun. 2, MLR (1997) (AD) 112.

Service of notice TJ/S 106 of the T.P. Act—When refused— bonafide requirement—

Refusal to accept the notice under section 106 of the Transfer of Property Act, addressed to the outgoing Chairman of the Governing Body by his successor constitutes sufficient service of notice determining the tenancy. Requirement of the premises for use of the son and widow daughter of the owner is bonafide requirement.

Afur Begum Vs. Dr. Yusuf Ahmed and anoiher. 2, MLR (1997) (AD) 380.

Section 19(1)— Deposit of rent with Rent Controller—When permissible—

A tenant is not entitled to make deposit of rent with the House Rent Controller xmless the land lord has refused to accept the rent sent to him by money order under section 18 of the Ordinance. Deposit of rent with the House Rent Controller after the expiry of the due date is not a valid deposit and such deposit does not save the tenant from being a defaulter. The legal heirs do not inherit the tenancy right after the monthly tenancy was determined during the life time of the original tenant by notice under section 106 of the Transfer of Property Act and as such they can well be evicted in execution of the decree obtained during the life time of the original tenant without resorting to fresh proceedings.

Shor Banu and others Vs. Md. Abdus Sobhan and others. 2, MLR (1997) (HC) 253.

Section 10(b) — Agreement contrary to law is void. Transfer of Property Act, 1882— Section 106— Notice terminating tenancy—

In the case .of a monthly tenant one month's notice under section 106 of the T.P. Act is sufficient.

Rafique Sowdagar (Mohd) Vs. Haji Ahmed Mia Sowdagar. 4, MLR (1999) (AD) 410.

Section 18— Ejectment of monthly tenant on ground of bonafide requirement—

The requirement of premises for own use of the land lord shall be bonafide and must not be colourable pretext. Question of bonafide requirement is a question of fact of which the court of appeal is the final court.

Hori Mohan Sarker Vs. Haji Ahmed Miah and another. 5 MLR (2000) (AD) 295.

Section 18— Plea of waiver when to be taken—

Ground of default made by a tenant in the payment of rent within time as contemplated in section 18 of the Premises Rent Control Ordinance, 1963 can not be overcome by subsequent payment of rent so to avoid eviction. Acceptance of rent by the land lord paid beyond the due date may amount to waiver . The plea of waiver must be taken at the earliest opportunity.

M/s. Binning & Co. Ltd. Vs. M/s. Nasirabad Properties. 40 DLR (AD) 89.

Section 18 and 19— Ejectment of tenant on ground of being defaulter—

In order to avail of the protection against ejectment, the tenant must deposit rents of every month within 15th day following the month even after termination of the tenancy.

Nowab Mean Vs. Nurunahar Begum. 4 BLD (AD) 74.

Section 18(5)— Deposit of rent without transmission cost of money order is not valid deposit.

Deposit of merely rent with Rent Controller without the transmission cost is not a valid deposit and as such the tenant can not have any protection against ejectment by reason of such deposit.

Mir. MA. Razzaque and others Vs. Md. Abdul Hai PatwarL. 5 BLD (AD) 97.

Section 18— Waiver of default—

Once a default occurs subsequent accept; nee of the rent in lump by the landlord, does not in the absence of any positive proof of his intention of waiver of such default, amount to waiver so as to entitle him to the protection against eviction.

M/s. Binning and Co. (Bangladesh) Ltd. Vs. M/s. Nasirabad Properties Ltd. 6 BLD (AD) 354.

Section 18— Ejectment on ground of sub-lease—

Unless created with the consent of the land lord sub-lessee is a mere trespasser. When the tenancy is terminated sub-lease does not exist and the sub-lessee does not have any defence against eviction on any technicalities of law.

Tajabunnessa Vs. Nazma Begum. 40 DLR (AD) 36.

The President's Order No. 142 of 1972

Citation: 2, MLR (1997) (AD) 361

Case Year: 1972

Subject: The President's

Delivery Date: 2018-04-24

The President's Order No. 142 of 1972

Article 4 (C) (d)—Omission to mention in affidavit certain particulars does not invalidate the deed—

Eveiy deed of transfer need be accompanied by an affidavit. No deed of transfer is null arid void only on the score that there was omission to mention certain particulars in the affidavit.

Khaleda Rahman (Mrs) Vs. Mohammad All and others. 2, MLR (1997) (AD) 361.

The President's Order No 69 of 1972 and 90 of 1972

Citation: 2, MLR (1997) (AD) 156

Case Year: 1972

Subject: The President's Order

Delivery Date: 2018-04-24

The President's Order No 69 of 1972 and 90 of 1972

Abatement of all kinds of suits and proceedings—No partial abatment—

P.O. No. 69 of 1972 provides for abatement of all kinds of suits and proceedings against the Government of Bangladesh whether or not related to the acquisition under the Act. No partial abatement is contemplated under P.O. No. 90 of 1972.

Bangladesh represented by the Secretary Ministry of L.A. & L.R. Vs. Chowdhury Tanbir Ahmed Siddilaj. 2, MLR (1997) (AD) 156.

THE PUBLIC SERVANTS (RETIREMENT) ACT, 1974

THE PUBLIC SERVANTS (RETIREMENT) ACT, 1974

(ACT NO. XII OF 1974).[6th February, 1974]

An Act to consolidate and amend the law relating to the retirement of public servants.

WHEREAS it is expedient to consolidate and amend the law relating to the retirement of public servants and to provide for matters connected therewith;

It is hereby enacted as follows:-

Short title and commencement

1. (1) This Act may be called the Public Servants (Retirement) Act, 1974.

(2) It shall come into force at once and shall be deemed to have taken effect on the 23rd day of November, 1973.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(a) “corporation” means any body corporate constituted or established by or under any law and includes any other body or organisation set up by the Government;

(b) “nationalised enterprise” includes any commercial or industrial enterprise, bank, firm, tea estate or any other enterprise owned by or vested in the Government or any corporation or local authority;

(c) “physician” means any holder of medical licence, diploma or degree engaged in the prevention, cure or treatment of diseases of man;

(d) “public servant” includes any person who is, for the time being, in the service of the Republic or of any corporation, nationalised enterprise or local authority or who, on the basis of having at any time been in the service of Pakistan, purports to claim any right to employment in the service of the Republic, but does not include any person who-

(i) is a member of any defence service,

(ii) is a teacher or employee of any University,

(iii) is employed in or under a commission, committee or board set up for a temporary period for specified purposes,

(iv) is a contingent or work-charged employee or a worker as defined in the State-owned Manufacturing Industries Workers (Terms and Conditions of Service) Ordinance 1973 (XXIII of 1973),

(v) holds any office which is filled by election or nomination under any law, or

(vi) holds any office the tenure of which is determined by or under any law;

(e) “Republic” means the People's Republic of Bangladesh;

(f) “teacher” means any person engaged in teaching.

Effect of laws, etc inconsistent with the Act

3. The provisions of this Act and the rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any rule, regulation, bye-law, instrument or contract or in any terms and conditions of service of a public servant.

Retirement of a public servant

4. 1[ Subject to the provisions of section 9, a public servant] shall retire from service on the completion of the fifty-seventh year of his age.

2[ * * *]

Retirement of a freedom fighter

3[ 4A. (1) Notwithstanding anything contained to the contrary in section 4, a public servant, who is a freedom fighter, shall retire from service on the completion of the fifty-ninth year of his age.

(2) If a public servant, as referred to in sub-section (1), is on leave preparatory to retirement immediately before the commencement of this section, such leave shall be terminated, and he shall, notwithstanding anything contained to the contrary in section 5, be re-employed in the service in such a manner as if he never had retired.

(3) The Government may require a public servant, in order to be entitled to any benefit under this section, to have his certificate or identity, as a Freedom Fighter, to be verified by the Ministry of Liberation War Affairs :

Provided that a public servant, who entered the service of the Republic as a Freedom Fighter, shall be exempted from such verification.]

Prohibition of re-employment

5. (1) No public servant who has retired from service shall be re-employed in any manner in the service of the Republic or of any corporation, nationalised enterprise or local authority.

(2) Sub-section (1) shall not apply to any re-employment of a public servant in any office specified in the Constitution of the People's Republic of Bangladesh.

(3) Notwithstanding anything contained in this section, the 4[ President] may, if he is of opinion that it is in the public interest so to do, employ a public servant on contract after his retirement.

Public servants on extension or re-employment on the commencement of the Act

6. Notwithstanding anything contained in this Act, a public servant who, on the commencement of this Act, is in service on extension or re-employment shall retire from or, as the case may be, cease to be in service-

(a) if he is a physician or teacher, on the completion of the sixtieth year of his age or, if he has completed before such commencement the sixtieth year of his age, on the expiry of twenty-one days from such commencement; or

(b) in any other case, on the completion of the fifty-seventh year of his age or, if he has completed before such commencement the fifty-seventh year of his age, on the expiry of twenty-one days from such commencement.

Post-retirement Leave

5[ 7. (1) A public servant who is required to retire from or, as the case may be, cease to be in service under any provision of this Act shall be entitled to such Post-retirement leave as is admissible to him and the period of such leave may extend up to one year from the date of his retirement or ceasing to be in service.

(2) Any reference to the expression Leave preparatory to retirement” in this Act, or, as a derivative of this Act, in any other Law, Rule, Regulation or Instrument having the force of law, shall be read and construed as post-retirement leave.]

Public servants on leave preparatory to retirement on the commencement of the Act

8. Notwithstanding anything contained in this Act, a public servant, who, on the commencement of this Act, is on leave preparatory to retirement, shall continue to be on such leave and shall retire or, as the case may be, cease to be in service on the expiry of such leave.

Optional retirement

9. (1) A public servant may opt to retire from service at any time after he has completed twenty-five years of service by giving notice in writing to the appointing authority at least thirty days prior to the date of his intended retirement :

Provided that such option once exercised shall be final and shall not be permitted to be modified or withdrawn.

6[ (2) The Government may, if it considers necessary in the public interest so to do, retire from service a public servant at any time after he has competed twenty-five years of service without assigning any reason.]

Public servants not entitled to retirement benefits in certain cases

10. If any judicial proceedings instituted by the Government or, as the case may be, employer or any departmental proceedings are pending against a public servant at the time of his retirement or, as the case may be, ceasing to be in service, he shall not be entitled to any pension or other retirement benefits, except his subscriptions to any provident fund and the interest thereon, till the determination of such proceedings, and the payment to him of any pension or other retirement benefits shall be subject to the findings in such proceedings.

Power to make rules

11. The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

Repeal and savings

12. (1) The Public Servants (Retirement) Ordinance, 1973 (Ord. XXVI of 1973), is hereby repealed.

(2) Notwithstanding such repeal, anything done, any action taken or any order made under the said Ordinance shall be deemed to have been done, taken or made, as the case may be, under the corresponding provision of this Act.

1 The words, figure and comma “Subject to the provisions of section 9, a public servant” were substituted for the words “A public servant” by section 2 of the Public Servants (Retirement) (Amendment) Ordinance, 1982 (Ordinance No. I of 1983)

2 The proviso was omitted by section 2 of the Public Servants (Retirement) (Amendment) Act, 1988 (Act No. XXIII of 1988)

3 Section 4A was inserted by section 2 of the Public Servants (Retirement) (Amendment) Act, 2010 (Act No. V of 2010)

4 The word “President” was substituted for the words “Prime Minister” by section 7 of the Bangladesh Laws (Amendment) Act, 1975 (Act No. XIII of 1975)

5 Section 7 was substituted by section 3 of the Public Servants (Retirement) (Amendment) Act, 2010 (Act No. V of 2010)

6 Sub-section (2) was substituted by section 4 of the Public Servants (Retirement) (Amendment) Ordinance, 1983 (Ordinance No. I of 1983)

Source : Ministry of Law, Justice and Parliamentary Affairs

The Recognised Non-Government Secondary School Teachers Terms & Conditions of Service Regulations 1979

Citation: 1, MLR (1996) (HC) 149, 2, MLR (1997) (AD) 409, 1, MLR (1996) (HC) 187, 1, MLR (1996) (HC) 71, 2, MLR (1997) (AD) 25

Case Year: 1979

Subject: The Recognised Non-Government Secondary School Teachers Terms & Conditions of Service

Delivery Date: 2018-04-24

The Recognised Non-Government

Secondary School Teachers

Terms & Conditions of Service

Regulations 1979

Recognised Non-Government Secondary School Teachers (Board of Intermediate and Secondary Education Rajshahi) Terms and Conditions of Service Regulations, 1979- Regulation 6- Appointment on probation and confirmation—

Confirmation of an employee appointed on probation depends upon satisfactory performance of his duties. Confirmation cannot be claimed as a matter of right. A probationer does not become permanent automatically with the expiry of the probationary period. The management is the sole judge to decide whether the services of a probationer are satisfactory or not and the civil court cannot sit in judgment over the decision of the management. If at the end of probationary period his service are terminated on the grourc that he is not suitable or his work was unsatisfactory, ordinarily it does not require, charge-sheet and show cause notice rior the probationer is entitled to pre-hearing before discharge.

Rajshahi Girls High School Vs. Abdul Mannan 1, MLR (1996) (HC) 149.

The Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education, (Jessore) (Terms and Conditions of Service) Regulations, 1979— Regulation 12— Power of the appointing authority to dismiss a teacher subject to approval of Board-

Under regulation 12 appointing authority is vested with the power to dismiss or remove a teacher with the prior approval of the Board of Intermediate and Secondary Education, There is no scope for postfacto approval and similarly order of approval lawfully passed earlier by the Board can not be rescinded.

Governing Body of Kapilmuni College represented by its Principal Vs. Sheikh Rowshan Ali and others. 2, MLR (1997) (AD) 409.

The Recognised Non-Government Intermediate College Teachers (Board of Intermediate and Secondary Education Dhaka) (Terms and Conditions of Service) Regulations, 1979— Regulation 26~Right of extension of service-Not fundamental right—

The right of extension of service beyond the age of retirement under regulation 26 is riot a fundamental right and as such is not enforceable in writ jurisdiction of the High Court Division under Article 102 of the Constitution. The remedy in such matter lies in a suit in proper court.

Mir Abu Bakar Siddique Vs. D.C. & Chairman Faridpur Mahabiddyalaya 1, MLR (1996) (HC) 187.

The Recognised Non-government Secondary School Teachers (Board of Intermediate and Secondary Education) Terms and Conditions of Service Regulations, 1979- Regulation 27—Right of extension of service-not fundamental right—

The right of extension of period of service of teacher of a Non-Government Secondary School beyond sixty years is not a fundamental right enforceable under article 102 of the Constitution.

Fazfur Rahman Vs. Board of Intermediate & Secondary Education, Dhaka and others 1, MLR (1996) (HC) 71.

The Recognised Non-Government Secondary School Teachers (Terms and Conditions of Service) Regulations 1979 — Entitlement of salary— So long the school continues functioning—

The teachers and employees of a school are entitled to their salaries and allowances so long the school continues functioning irrespective of the dispute relating to the shifting of the school. Payment of their pay and allowances cannot be stopped on the plea of dispute on the shifting of the school.

Bangladesh represented by Secretary Ministry of Education Vs. Md. Antoar Hosain and others . 2, MLR (1997) (AD) 25.

The Representation of the People Order, 1972

Citation: 1, MLR (1996) (AD) 234, 1, MLR (1996) (HC) 87, 5 MLR (2001) (AD), 5 MLR (2000) (AD), 5, Haider and others. 150, 1. MLR (AD), 4, MLR (1999) (HC) 377, 4, MLR (1999) (HC) 377, 4, MLR (1999) (HC) 377, 1. MLR (1996) (HC) 325, 3, MLR (1998) (AD), 5 MLR (20

Case Year: 1972

Subject: The Representation of the People

Delivery Date: 2018-04-24

The Representation of the People Order, 1972

(P.O.No.155 of 1972)

Dispute as to age of candidate—

An objection as to the age of a candidate and acceptance of his nomination by the Returning Officer is an election dispute, the remedy against such dispute lies in the Election Tribunal and not in the writ jurisdiction of the High Court Division.

Md. Mahmuduf Hoque Vs. Md. Hedayetullah & otliers. 1, MLR (1996) (AD) 234.

Section 12—Disqualification for election-Defaulter—

It is within the legislative competence of the President upon his satisfaction to promulgate Ordinance when circumstance arises in a situation the Parliament not being in session. Ordinance V of 1995 is not ultravires the Constitution and calls for no interference. Where a company or a firm defaults payment of loan on the day of submission of nomination paper by its director or partner, the director or partner incurs disqualification from being elected as a member of the Parliament as the expression "he" appearing in proviso to section 12 refers to a director or a partner and does not refer to the company or the firm.

Federation of Bangladesh Chambers of Commerce and Industries Vs. Bangladesh 1, MLR (1996) (HC) 87.

Article 16(4)-

Allocation of protected election symbols in by-election-Election dispute at the intermediate stage of the election process does not fall within the jurisdiction of High Court Division under article 102 of the Constitution. Party Joint Secretary General has the locus stand! to contest the dispute over allocation of election symbol Withdrawal of candidature does not give a walkover to the candidate of the rival parly with regard to Hie allocation of symbol of other parly Jatiya. Party.

Joint Secretary General Vs. Molussim Btilah and ofhers. 5 MLR (2001) (AD).

Article 31 and 36(4)— Exclusion of ballot papers which do not beat official marks —

The legal position is thai a ballot paper shall bear full official mark on ils back and (he counter foil on ils front. Bui during the rush hour of brisk polling it may nol be possible lo follow the rule strictly. In such ;i siuialiuii ballot papers bearing psirlial official marks are valid and should not bt excluded from the count. Only the ballot papers bearing no offieial mark either full Of partial shall be excHidpil from count.

Hossaiti Suijdee vs, S. S, Haider and otlwrs. 5 MLR (2000) (AD).

Article 36 (4iii)-(iv)— Exclusion o£ ballot papers bearing no code number or signature or initial of the Presiding officer —

Thai the ballot jiapers shall bear the code number or slgnaUiri: or initial of (he Presiding officer or the Assistant Presiding Officer Is not the requirement ol law and as such Hie ballot papers which do not bear such number or signature or initial are not liable to be excluded Ironi the count.

Delwar liosbwri Sayed Vs. S. 5, Haider and others. 150.

Article 31(1V) since amended by Act 23 of 1994-Pourashava Ordinance 1977-Section 20— AdmUsibllity of news item into evidence —

The Election Commission has authority under law to regulate Us own procedure relalfn^ (o Ils ImicLions. There was no waul of jurisdiction of the Eleclion Commission lo InLrotluce identity cord for the purpose of holding election In Tongi PourasJiJiva. News published til a news paper by ilsdf is not admissible evidence unless i he person who pub) short the news is examined,

Md. Malmram Ali Vs. Chief Election Commissioner and others. 1. MLR (AD)_.

Article 36 (4)-Canc citation of ballot papers — when can be done- Article 51, 58, 63— Election disputc-natuie of- Allegation of malpractice, corrupt practice- Vague and indefinite allegation- not tenable- Strict proof of the allegations required- Onus of proof Is on the Election petitioner and it docs never shift- Recounting of ballot paper by Election Tribunal must not be resorted to whimsically Or as a matter of course- Secrecy of ballot paper should not be interfered with at the sweet will of the Election Petitioner —

Ballot papers shall be.iv official marte on their back which [5 the mandatory of law. Guidelines of Uie EJcclJon Commission provide for signing Hit b,iiloL papers on their batik by the A&sisienL r'residing Qlficer which is merely directory In iiiilure. HalloL papers which bf.if (.he olTiti;il mark- but do noE Lhe siuaUire of the Assistant Presiding Officer cannot be cancelled merely by reason of their not bearing the signature of the Assistant Presiding officer. Ballot papers which do not bear official mark as required by article 36(4) of P.O 155 of 1972 shall be declared invalid.

Emdadul Haque (Md) Vs. Md. Ataur Rahman Khan & others. 4, MLR (1999) (HC) 377.

Election dispute not a suit in equity—

Election contest is not an action in law nor a suit in equity. Election can only be challenged under the Representation of People Order 1972 in the manner provided thereunder. Allegations of rigging, corrupt practice and illegal acts vitiating the result of the election must be precisely and specifically stated in the Election petition as required mandatorily by article 51(1) of the P.O so as to disclose a complete cause of action.

Emdadul Haque (Md) Vs. Md. Ataur Rahman Khan & others. 4, MLR (1999) (HC) 377.

Allegation of rigging- onus of proof-

Allegation of rigging, corrupt practice or illegal acts must be proved strictly beyond all reasonable doubt by unimpeachable evidence. Onus of proof heavily lies upon the Election petitioner arid it never shifts.

Emdadul Haque (Md) Vs. Md. Atahar Rahman Khan & others. 4, MLR (1999) (HC) 377.

Recounting of ballot papers when can be made-

Recounting of ballot papers must not be resorted to by the Election Tribunal lightly or as a matter of course. Unless a very strong case is made out recounting of ballot papers should not be made by the Election Tribunal and sanctity and secrecy' thereof should not be violated at the wishful desire of the Election petitioner. Election of returned candidate cannot be setaside on the basis of vague, indefinite and flimsy grounds.

Emdadul Haque (Md) Vs. Md. Ataur Rahman Khan & otters. 4, MLR (1999) (HC) 377.

Election Tribunal cannot delegate its functions—Article 53—

Election tribunal consisted of District Judge or Additional District Judge cannot delegate its power to Subordinate Judge to deci Je an election petition. Subordinate Judge has no authority to decide an election petition.

Mosharraf Hassan Shahjahan Vs. Election Tribunal Bhola and others. 1. MLR (1996) (HC) 325.

Article 50—Necessary parties to Election Petition-

Under Clause (a) of Article 50 all the contesting candidates and under clause (b) other persons against whom allegation of corruption and illegal practices are made, must be made respondents to the Electi m. Petition. An Election Petition cannot be dismissed by reasons of implevling the Returning officer and the Assistant Returning Officer.

Acioocate Mohammad Abdul Hamid Vs. Md Fazlur Rahman. 3, MLR (1998) (AD)

Article 49 (2)— Assistant Presiding officer performing duties in a polling centre by impersonation for sometime without any overt act for any candidate—

An unauthorised person acting for some time in a polling centre as Assistant Presiding Officer by impersonation but without doing any partisan act or canvassing for the returned candidate or such situation having no influence on the result of the election, the election of the centre can not be declared viod and fresh poll need not be ordered.

Delwar Hossain Saydee (Moulana) Vs. S. S. Haider and others. 5 MLR (2000) (AD) 150.

Article 62(3)— Appeal- Code of Civil Procedure, 1908— Order 41 Rule 14(3)— Dispensing with service of notices upon non-contesting parties in appeal— Applicability of—

Appeal is the continuation of Electicn Petition. When provisions of the Code of Civil Procedure, 1908 not inconsistent with the Order of 1972 are made applicable to the proceeding of the Election Petition, the same provisions are equally applicable to the appeal arising out of Election Petition and as such the service of notice in appeal upon the non-contesting parties can be dispensed with under Order 41 rule 14(3) of the Code of Civil Procedure.

Delwar Hossain Saydee (Moulana) Vs. Sudhangsha Shekhar Haider and others 4, MLR (1999) (AD) 252.

The Rin Salishi Ain, 1989

Citation: 3, MLR (1998) (AD) 65, 5 MLR (2000) (AD) 41,

Case Year: 1989

Subject: The Rin Salishi

Delivery Date: 2018-04-24

The Rin Salishi Ain, 1989

Section 7— Limitation under the Ain—

Limitation provided in special law shall prevail upon the ordinary law of limitation. The limitation in respect of the Rin Salishi Board runs from the date when the Board begins to function and not from the date of its constitution.

Ajahar AH Sarder Vs. Mohammad Ismail Howlader and others. 3, MLR (1998) (AD) 65.

Return of land sold on ground of natural calamity—

Although there is difference in the manner of expression the two terms that "he was in financial distress" or "that he was unable to maintain his livelihood" being affected by natural calamity, in substance do not have any difference. So the judgments impugned do not call for any interfence merely on this technical point.

Moshiur Rhman (Md.) and others Vs. Additional Deputy Commissioner (Rev.) Pirojpur and others. 5 MLR (2000) (AD) 41.

THE SERVICES (REORGANISATION AND CONDITIONS) ACT, 1975

THE SERVICES (REORGANISATION AND CONDITIONS) ACT, 1975

(ACT NO. XXXII OF 1975).[18th July, 1975]

An Act to provide for the reorganisation of the services of the Republic and of public bodies and nationalised enterprises, and for prescribing unified grades and scales of pay and other terms and conditions of service for persons employed in such services.

WHEREAS it is expedient to provide for the reorganisation of the services of the Republic and of public bodies and nationalised enterprises and for prescribing unified grades and scales of pay and other terms and conditions of service for persons employed in such services;

It is hereby enacted as follows:-

Short title and commencement

1. (1) This Act may be called the Services (Reorganisation and Conditions) Act, 1975.

(2) It shall be deemed to have come into force on the 1st day of July, 1973.

Definitions

2. In this Act, unless there is anything repugnant in the subject or context,-

(a) “Nationalised Enterprise” includes any industrial or commercial concern which is owned, controlled or managed by, or vested in, the Government or any public body;

(b) “Pay” includes salary, allowance and any other emoluments by whatever name called;

(c) “Public body” means any body, authority, corporation or institution constituted or established by or under any law and includes any other body, authority or institution owned, controlled, managed or set up by the Government;

(d) “Service” includes any post or office.

Act to override all other laws, etc

3. The provisions of this Act or any order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law or in any rule, regulation, by-law, agreement, award, settlement or term or condition of services.

Power of Government to reorganise services of the Republic and of public bodies and nationalised enterprises

4. The Government may, by order notified in the official Gazette, reorganise the service of the Republic or of any public body or nationalised enterprise and for that purpose create new services or amalgamate or unify existing services.

Power of Government to prescribe unified grades and scales of pay, etc

5. (1) The Government may, with a view to bringing uniformity in the grades and scales of pay of different persons or classes of persons employed in the service of the Republic or of any public body or nationalised enterprise, by order notified in the official Gazette, prescribe grades and scales of pay and other terms and conditions of service for all or any such persons or classes of persons.

(2) No persons whose grade or scale of pay is prescribed under sub-section (1) shall receive, and no person shall allow such person, any benefit of a grade or scale of pay which is higher than the grade or scale of pay prescribed for him.

Retrospective effect to order

6. (1) An order under section 4 or 5 may be made so as to be retrospective to any date not earlier than the date of commencement of this Act.

(2) Nothing in this section shall have the effect of creating any offence retrospectively.

Variation and revocation of conditions of service permitted

7. An order under section 4 or 5 may vary or revoke any condition of service of a person employed in the service of the Republic or of any public body or nationalised enterprise, and no such person shall be entitled to any compensation for such variation or revocation of any condition of his service to his disadvantage.

Indemnity

8. No order made under section 4 or 5 shall be called in question in any court, and no suit or other legal proceeding shall lie against the Government or any person for anything done or intended to be done in pursuance of this Act or any order made thereunder.

Penalty

9. Whoever contravenes any provision of section 5(2) shall be punishable with fine which may extend to five thousand taka, and with a further fine which may extend to five hundred taka for each month after the first during which such contravention continues.

Cognizance of offence

10. No court shall take cognizance of an offence punishable under this Act except on a complaint in writing made by the Government or by a person authorised by it in this behalf.

Repeal and savings

11. (1) The Services (Reorganisation and Conditions) Ordinance, 1975 (Ord. XXII of 1975), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or any order made under the said Ordinance shall be deemed to have been done, taken or made, as the case may be, under the corresponding provision of this Act.

Source : Ministry of Law, Justice and Parliamentary Affairs

The Services (Reorganisation and Conditions) Act, 1975

Citation: 2, MLR (1997) (AD) 351

Case Year: 1975

Subject: The Services (Reorganisation and Conditions)

Delivery Date: 2018-04-25

The Services (Reorganisation and Conditions) Act, 1975

Section 5— Power of the Government to reorganise services—Scale once granted cannot be withdrawn long after—

Government under section 5 of the Act has the power to reorganise services and alter the terms and conditions of service. Time scale granted earlier and having been drawn by the Government Servant for long cannot be interfered with on ground of non-entitlement.

Bangladesh Government represented by Secretary Ministry of Industries Vs. Md. Shahjahan and others. 2, MLR (1997) (AD) 351.

The Small Cause Courts Act, 1887

Citation: 1, MLR (1996) (AD) 258, 1, MLR (1996) (AD) 279, 3, MLR (1998) (AD) 139, 1, MLR (1996) (AD) 305, 5 MLR (2000) (HC) 146, 1, MLR (1996) (AD) 387, 2, MLR (1997) (AD) 93, 3, MLR (1998) (AD) 75, 3, MLR (1998) (AD) 81, 3, MLR (1998) (AD) 134, 4, MLR (1999) (AD

Case Year: 1887

Subject: The Small Cause Courts

Delivery Date: 2018-04-25

The Small Cause Courts Act, 1887

(Act No. IX of 1887)

Section 15(1)—Suit for ejectment— Jurisdiction of small cause court—

In order to attract the jurisdiction of small cause court there must have been ifelalionship of landlord and tenant and the defendant must be a defaulter or in the alternative the plaintiff must be in the bonafide requirement of the premises, otherwise the plaintiff shall have the option to seek eviction of the defendant in the court of ordinary jurisdiction.

Md. Fazlur Rahman Shah Vs. Md. Arifur Rahman @ Badshah. 1, MLR (1996) (AD) 258.

Jurisdiction of small cause court-Disputed title-

Jurisdiction of small cause court is ousted when disputed title is involved in the case.

Babru mia Vs. Md. Abul Kashem. 1, MLR (1996) (AD) 279.

Section 15—Suit for ejectment of licensee does not lie in S.C.C. Court—

Suit for recovery of possession of immovable property by evicting licensee does not lie in the Small Cause Court which should be filed in the ordinary court of competent jurisdiction.

Aziz Ahmed Sarker and others Vs. Sree Sree Laxmi Narayan Jew Thakur. 3, MLR (1998) (AD) 139.

Section 23- Plea of title does not oust jurisdiction of S.C. court-Promissory estoppel—

Jurisdiction of Small Cause Court is not ousted merely on the raising of the plea of title by the defendant. Once tie relationship of tenant and landlord is admitted the defendant is stopped by promissory estoppel from raising the plea of title. He is bound to surrender the possession of the premises to the plaintiff on the termination of the tenancy.

Afroza Bewa and others Vs. Md. Jalalauddin Pramanik and others. 1, MLR (1996) (AD) 305.

Section 23— Jurisdiction of S.C. Court is ousted when serious dispute as to title is involved—

Although Small Cause Court judge can incidentally go into the question of title, he cannot decide title when the dispute involves serious question of title and in that case his jurisdiction is ousted.

Abdul Gani (Dr) Vs. Mujibar Rahman & others. 5 MLR (2000) (HC) 146.

Section 25- Service of notice u/s 106 T.P. Act—

Service of notice under section 106 of the T.P. Act received by the brother of the defendant under signature on the postal acknowledgement when no contrary is shown, has legal presumption.

Mosammat Mohsena Khatoon Vs. M/s. Habib Knitting Mills. 1, MLR (1996) (AD) 387.

Sub-let-Bonafide requirement ejectment—

A person to whom sub-let of a premises has been given is not a tenant when he is not accepted as such by the land lord. Concurrent findings of the Courts below on sub-letting and bonafide requirement for own use of the owner cannot be interfered with.

Abu Yasin Khairul Hoque & another Vs. Haji Forkan Uddin & others. 2, MLR (1997) (AD) 93.

Suit for eviction—Where serious question of title is involved—

When serious question of title is involved, suit for eviction of the defendants from the suit premises either on ground of default in payment of rents or bonafide requirement in the Small Court is not maintainable. In such case plaint should be returned to the advocate of the plaintiff for presentation in the proper court.

Kazi Golzar Hossain and another Vs. Dr. Md. Helaluddin. 3, MLR (1998) (AD) 75.

Section 25— Scope of interference in revision with findings of presumption about service of notice u/s 106 of T.P. Act by registered post—

Notice under section 106 of the Transfer of Property Act determining the tenancy sent by registered post has presumption of due service under section 27 of the General Clauses Act, 1897. Unless rebutted by counter evidence the findings arrived at the trial court upon consideration of the evidence of the postal peon cannot be interfered with under section 25 of the Small Cause Courts Act, 1887.

Nurul Islam (Md) Vs. Md. Ali Hossain Mia being dead his heirs Md. Amir Hossain and others. 3, MLR (1998) (AD) 81.

Section 25—Suit for ejectment-Pending Title suit no impediment-

Upon proof of the tenancy a suit for eviction can well be decreed. That a suit for declaration of title or partition has been filed is no ground for returning the plaint of the S.C.C. suit.

Anowarul Ferdous (Md) Vs. Most Umrne Salema Begum 3, MLR (1998) (AD) 134.

Section 25- Effect of decree of subsequent suit on the decree of small cause court—

Court can take notice of subsequent events, no doubt, but the decree of subsequent suit instituted by the lessee against the Government has no bearing upon the decree of the S.C. Court where the relationship between the plaintiff and defendant as monthly tenant is well established.

Priti Rani Das Vs. Haran Chandra Gope being dead his heirs Gonesh Chandra Chose & others 4, MLR (1999) (AD) 430.

Suit for eviction of monthly tenant— Monthly tenant cannot resist eviction by setting up claim of title—

Law is settled that a tenant once admitted as such can not resist his eviction by setting up claim of title by purchase from co-sharers without surrendering possession of the premises. Order 21 rule 29 of the Code of Civil Procedure has no manner of application to the pending execution case in different courts.

Monimra Begum Vs. Atiqullah 4, MLR (1999) (HC) 240.

Section 25— Ejectment of tenant—

When the S.C.C. judge found the monthly tenant defaulter in consideration of the evidence on record and the plaintiff succeeded in establishing bonafide requirement which are upheld by the High Court Division in application under section 25 of the Small Cause Courts Act, 1887 no interference is called for as the findings suffer from no legal infirmity.

Sheikh Ahmed Vs. Noor Khatun and others. 5 MLR (2000) (AD) 319.

Sect on 25- Ejectment of monthly tenant—

tenant can well be ejected when it is proved that he is a defaulter in payment of rent. The other ground bonaiide requirement need not be investigated by the court. Arbitration clause in the agreement of tenancy is no bar to the suit for ejectment.

Bashir Ahmed and others VS. Ayub Ali Mollah. 5 MLR (2000) (HC) 1.

The Specific Relief Act, 1877

Citation: 1, MLR (1996) (AD) 423, 4, MLR (1999)(HC) 337, 1, MLR (1996) (HC) 90, 2, MLR (1997) (AD) 215, 2, MLR (1997) (AD) 237, 2, MLR (1997) (AD) 295, 2, MLR(1997) (AD) 363, 3, MLR (1998) (AD) 17, 3, MLR (1998) (AD) 58, 5 MLR (2000) (AD) 189, 5 MLR (2000) (AD)

Case Year: 1877

Subject: The Specific Relief

Delivery Date: 2018-04-25

The Specific Relief Act, 1877

(Act No. I of 1877)

Section 9 Suit for possession—

Abaur Rouf (Mohammad )Vs. Abdul Hamid and others. 1, MLR (1996) (AD) 423.

Section 9- Recovery of possession—

Immovable property means vacant land as well as land with structures and fixtures therein. Decree for recovery of possession of land after removal of structure therefrom can well be granted in a suit filed within 6 months of dispossession under section 9 of the Act.

Monir Hossain and others Vs. Darag Ali 1, MLR (1996) (HC) 90.

Section 9- Recovery of possession of immovable property—

Suit under section 9 of the Specific Relief Act, 1877 for recovery of possession of immovable property dispossessed of by force or otherwise than in due course of law is maintainable. But when the possession was delivered in execution of a decree the remedy lies under Order 21 rule 100 of the Code of Civil Procedure, 1908 and not under section 9 of the S.R. Act. Proceedings under section 9 of the S.R. A(.t cannot be converted into one under Order 21 rule 100 C.P.C.

Delwar Hossain Khan Vs. Amzad Hosstin & others. 4, MLR (1999)(HC) 337.

Section 12—Specific performance of contract—Legal requirements—

The primary legal requirement in a suit for specific performance of contract is that the plaintiff must prove the genuineness of agreement and passing of the consideration by reliable and cogent evidence. When these basic legal requirements are proved and decision is taken thereupon by the trial court, the lower appellate court can not interfere with such findings merely on surmise and conjecture without repelling the findings of the trial court.

Jahanara Begum Vs. Md. Aminul Islam Chowdhury and others. 2, MLR (1997) (AD) 215.

Specific performance of contract— Forged document-opinion of expert—

In a suit for specific performance of contract the plaintiff must prove that the agreement is genuine and the consideration has been passed between the parties. When the signature of the defendant on the alleged deed of agreement is found to be forged by handwriting expert and when upon proper consideration of the evidences on record the Division Bench of the High Court Division arrived at the adverse finding as to the genuineness of the agreement, the Appellate Division finds no ground to interfere with such finding.

Syed Munsif Ali Vs. Shashanka Mohon Chowdhury and another. 2, MLR (1997) (AD) 237.

Specific performance of Contract-Oral contract- Nature of proof-

Oral contract always must be taken cautiously. The time, place and manner of entering into the oral contract and payment of consideration must be proved by the plaintiff with very reliable evidence. Appellate Court can- always take a different decision but in doing so it must advert to the finding of the trial court with proper reasoning.

Md. Moslem uddin and others Vs. Ma. Jonab Ali and another. 2, MLR (1997) (AD) 295.

Section 12— Genuineness of bainapatra— Concurrent findings—

Appellate Division declined to interfere with the concurrent findings that the bainapatra is genuine and on such finding the suit was decreed which was affirmed by the lower Appellate Court as well as the High Court Division on proper appreciation of the evidence on record.

Monsur Ali (Md) Vs. Helal Uddin Bhuytan and another 2, MLR(1997) (AD) 363.

Section 12— Possession already taken through court- cannot be disturbed—

In execution of a decree for specific performance of contract the plaintiff got into possession of the suit property through court and this aspect of the possession has been consistently found by the trial court as well as the Appellate Court Such consistent finding of possession can not be interfered with merely on the ground that the plaintiff did not pray for delivery of possession in the Execution case.

Nagendra Nath Singh Vs. Toyabul Kossain Mia being dead his heirs Nanna Hoque and others. 3, MLR (1998) (AD) 17.

Section 12— Decree for specific performance of contract- Pre-requisite—

The essential ingredients which the plaintiff '.s required in order to succeed in a suit for specific performance of contract, to prove are that the deed of agreement or the bainapatra is genuine, consideration money passed between the parties and delivery of possession was given in pursuance thereof.

Minhazuddin Talukder Vs. Abdul Jalil Howlader and others. 3, MLR (1998) (AD) 58.

Section 12— Enforceability of Contract—

Contract for sale of land which is genuine is enforceable in law. Time is not essence of contract. Hardship of the defendants is no ground for refusal of decree for specific performance of contract.

Anwara Begum Vs. Md. Karimul Hague and others. 5 MLR (2000) (AD) 189.

Section 12- Suit for specific performance of contract—

The legal requirement is that to enter into a contract for sale of land by an illiterate village woman she must have independent advice and the plaintiff an advocate who was in confidence for rendering legal service in certain pending litigations, is required to prove the passing of consideration and the contract to have been made in good faith.

Marium Begum (Mrs.) and others Vs. Most Mariam Begum and others. 5 MLR (2000) (AD) 345.

Section 39— A void document is distinguishable from voidable document so far legal implications are concerned—

An instrument which is void-ab-initio, the plaintiff is not required to institute any suit to avoid the same. But in the case of a voidable instrument the plaintiff must, when he is party to it, institute a suit for cancellation of the same on payment of advalorem court fee.

Chitta Ranjan Chakrabarty being dead his heirs Ashish Chakrabarty and others Vs. Md. Abdur Rab alias Moulavi Md. Abdur Rab 2, MLR (1997) (AD) 58.

Section 42—Relief under section 42 is discretionary—Cardinal principles relating to agreement—

Grant of decree for specific performance of contact falls within the discretionary power of the Court. The success of the plaintiff in such suit hinges upon two cardinal principles— that the plaintiff must prove the execution of the deed of agreement and the passing of consideration between the parties on the basis of consistent and reliable evidence.

Kamrunnessa (Mosammat) Vs. Abul Kashem and others. 2, MLR (1997) (AD) 220.

Section 42— Declaratory suit—

Findings of fact arrived at on proper consideration of evidence by the trial court cannot be interfered with in revisional jurisdiction unless the same is found absolutely perverse.

Khurshid Ali & others Vs. Noorjahan Bewa & others. 1, MLR (1996) (AD) 210.

Section 42—Declaratory decree with consequential relief—

in a suit for declaratory decree where consequential relief has to be sought under the proviso to section 42 consequential relief must be prayed for otherwise the suit must fail.

Hasan Bali, Chairman, Saidkathi Union Parishad Vs. Abdul Motaleb Sheik and others 2, MLR (1997) (HC) 363.

Section 42— Declaratory suit in respect of joint share—

In the absence of any evidence as to the partition of share of joint property, the plaintiff although has title and interest to the purchased land, cannot maintain a suit simpliciter for mere declaration of title to the portion of his share without seeking relief in the form of partition.

Shabiha Khanam (Mrs) Vs. Jaitun Bibi being dead her heirs Syed Nurul Hasan and others. 3, MLR (1998) (AD) 15.

Section 42— Declaratory decree—-

In a suit for declaration of title the plaintiff must prove the basis of his claim. When the claim of settlement fails subsequently no case of adverse possession can be set up.

Safiya Khatun and others Vs. Zilla Parishad, Chittagong and another. 4, MLR (1999) (AD) 361.

Section 42- Maintainability of suit for declaration of title and recovery of possession— When permissible without seeking partition—

A suit for declaration of title and recovery of possession of the suit land without seeking for partition when the plaintiff has succeeded in establishing his title to and possession therein before he was dispossessed and the suit is instituted within time, is maintainable.

Amir Hamza Vs. Mohammad Abdul Ali & others. 4, MLR (1999) (AD) 424.

Section 42— Maintainability of Suit—When to be decided— Code of Civil Procedure , 1908—

Order 7 rule 11- Plaint can not be rejected on ground of maintainability of suit—

Maintainability of the suit can be determined at the time of trial and not under Order 7 rule 11 C.P.C. Plaint can not be rejected in limine under Order 7 Rule 11 C.P.C on ground of maintainability of the suit.

Nakul Chandra Saha (Sree) & and others Vs. Babu Subash Chandra Sarker. 4, MLR (1999) (AD) 426.

Section 42— Declaratory decree in respect of binding effect of decree—

Where the plaintiffs have clear title and prossession in the suit land and the defence plea of benami transaction failed, the decree obtained in a partition suit without impleading the plaintiffs as parties to the suit, is not binding upon them. In a suit for declaration of the decree of the partition suit as not binding upon them the plaintiffs are not required to seek the relief for declaration of title and Khas possession .

Zahur Ali and another Vs. Khatibuddin and another. 4, MLR (1999) (HC) 213.

Section 42—Suit for declaratory decree— with Khas possession—

A suit for declaration that certain deeds are fraudulent, forged, void and not binding upon the plaintiff and also for recovery of khas possession of the suit land falls under section 42 and not under section 39 of the Specific Relief Act, 1877.

Jamir Uddtn Ahmed Vs. Md. Ziaul Huq and others. 4, MLR (1999) (HC) 301.

Section 42— Declaration of title in a suit by a recorded tenant—

Record of rights in the S.A. and R.S. khatian are indicative of possession of the plaintiff in whose name such records stand and as such a suit by him for mere declaration of title is quite maintainable.

Thandanessa Bibi and others Vs. Monowar Jowarder and others. 5 MLR (2000) (AD) 329.

Section 39- Declaration on ground of fraud-

Wlien a village Pardanashin illiterate woman having althrough been in possession disowns a Hebabil ewaj deed on the allegation of being created by practising fraud behind her knowledge and passing of the consideration is not proved and on the contrary the donee claiming the land decades after its execution the court has to consider the circumstances under which the deed was created. Limitation runs from the date of knowledge when fraud is alleged.

Jobeda Khatun Vs. Shohorab Hossain and others 5 MLR (2000) (HC) 41.

Section 42— Declaratory Suit— maintainability—

When the record of rights of the suit land stands in the name of the predecessor in-interest of the plaintiff having also been in possession, the plaintiff can maintain a simple suit for declaratory relief without seeking consequential relief.

Shamsul Hoque & others Vs. Moze Ali Mollah and others. 5 MLR (2000) (HC) 164.

Section 54— Injunction against co-sharer—When can be granted—

No injunction can be granted against the cosharers in a joint property unless the plaintiff can show his exclusive possession in specified portion of such land.

Abdus Samad Akanda and others Vs. Abdul Halim Myi and others. 3, MLR (1998) (AD) 73.

Section 54— Permanent injunction— Necessary proofs—

When the plaintiff succeeds in proving his title and possession in the suit land by documentary and oral evidence, he is entitled to get a decree for permanent injunction.

Bhawal Raj Court of Ward Estate represented by the Chairman, Land Reforms Board and another Vs. M/s Capital Properties Ltd. and others. 3, MLR (1998) (AD) 218.

Section 56— Permanent injunction— Court cannot direct Government to grant settlement.

No injunction can be granted against the Government when the plaintiff did not acquire any title to the suit land by virtue of an inoperative kabala made in contravention of the condition of kubilyat even though the plaintiff may be in possession thereof. The Court cannot direct the Government to grant settlement of khas land to the plaintiff though he may nave a reasonable claim. It is the discretion of the Government to grant settlement of khas land but such discretion should be exercised judiciously.

Bisharat Ali Mollah Vs. Government of Bangladesh represented by Deputy Commissioner Chuadanga and others.. 4, MLR (1999) (AD) 246.

Suit for damage and Compensation— Interest pendente lite— When can be granted—

In a case involving disputed question as to the determination of the amount of claim, no interest pendente lite can be granted from the date of filing the suit. Interest at reasonable rate can be granted from the date of signing the decree in appeal.

A. Jabbar Chowdhury (M) Vs. M/S. Saitar Match Works Ltd. 5 MLR (2000) (AD) 252.

Suit for damage for vexatious and malicious proceedings—

When the previous proceedings were not malicious and vexatious and the defendents were pursuing the same bonafide, the suit for damage or compensation is not tenable in law.

Salma Islam (Mrs) Vs. Mrs. Paruin Bonn and others. 4, MLR (1999) (AD) 178.

Section 9—Restoration of possession—

An aggrieved judgment-debtor under section 9 of the Specific Relief Act, 1877 can institute a suit to establish his title and on obtaining a decree therein can recover possession of the property in question. Until then he can not seek temporary injunction against the restoration of possession as directed by the court under section 9 S.R. Act.

Mosammat Monwara Begum Vs. Sycd Ashrafuddin. 40 DLR (AD) 251.

Section 39 and 42— Declaratory suit— consequential relief—

A suit for declaration that certain document is void comes under section 39 of the S.R. Act. But when further prayer is added to the said declaration by way of consequential relief, the suit then is covered by both section 39 and 42 of the S.R. Act.

Sofia Khanam Vs. Faizunnessa. 39 DLR (AD) 46.

Section 55— No injunction against the owner by person in permissive possession—

A person in permissive possession can not maintain a suit for injunction against the owner of the property.

Altabuddin Vs. Mahfuzus Sobhan. 42 DLR (AD) 78.

Secton 9— Recovery of possession by a trespasser when dispossessed by subsequent tresspasser—

It is well settled that in the case of successive independent, trespassers, the first trespasser who has been continuously in possession has a right to maintain his possession against all the world except the rightful owner. He can sue for ejectment and recovery of possession from any person who subsequently dispossessed him unless the latter is the real owner or claims under him or justifies his authority, the title being held with the first trespasser.

Abdul Hamid and ottiers Vs. Afazuddin Ahmed and others. 77 BLD (AD) 17.

Section 12— Specific performance of Contract—

The relief sought for in a suit for specific perforance of contract is the discretion of the court. The well settled principle of law is that the court will not decree a suit for specific performance when the terms of the contract are uncertain and there is noi a concluded contract.

H.N. Fabrics Ltd. Vs. Mallick Textile Industries and others. 5 BLD (A.D.) 271.

Section 22— Discretionary power of the Court—

In the case of serious hardship the Court will not decree a suit for specific performance of contract but direct the return of consideration received in advance with compensation by way of solatium.

Md. Latifur Rahman and others Vs. Golam Ahmed Shah and others. 6 BLD (AD) 231.

Section 27— Whether Custodian of Enemy property can execute a kabala In pursuance of a decree for speciiic performance of contract—

Since the Custodian of enemy property stepped into the shoes of the owner with the power of transfer he can execute kabala deed in favour of the plaintiff who got a decree for specific performance of contract for sale of land made by the owner thereof.

Rahima Akhter and others Vs. Asim Kumar Bose and others. 5 BLD (AD) 155.

Section 39 and 42— Suit for declaration and consequential relief by way of cancellation—

A suit seeking declaration simpliciter that certain document is viod and a nullity when such deed exfacie is void falls under section 39 of the S.R. Act even though the plaintiff may have been a party to it. But when declaration and cancellation of certain document is sought when the document is voidable the cancellation being consequential to declaration the suit falls both under section 39 and 42 of the S.R. Act.

Sufia Khanam Chowdhury Vs. Faizunnessa Chowdhury. 7 BLD (AD) 55.

Section 54— Permanent injunction when can be granted—

In a suit for permanent injunction if the plaintif proves his possession in but fails to prove his title to the suit land, he is entitled to get a decree for injunction.

Manindra Nath Sen Sarma Vs. Bangladesh 4 BLD (AD) 285.

Abandoned Buildings (Supplementary Provisions) Ordinance 1985

Abandoned Buildings (Supplementary Provisions) Ordinance, 1985

Acquisition and Requisition of Immovable Property Ordinance, 1982

Administrative Tribunals Act, 1980

Administrative Tribunals Act, 1980

Arbitration Act, 1940

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

Bangladesh Agricultural Development Corporation Decipilinary case Proceedure 1977

Bangladesh Agricultural Development Corporation Ordinance, 1961

Bangladesh Allocation Rules, 1982

Bangladesh Bar Council Order, 1972

Bangladesh Biman Corporation Employees (Service) Regulations, 1979

Bangladesh Citizenship (Temporary Provisions) Order, 1972

Bangladesh Civil Service Recruitment Rules. 1981

Bangladesh Civil Service Recruitment Rules, 1981

Bangladesh Civil Service Seniority Rules, 1983

Bangladesh Engineering and Technological University Ordinance, 1961

Bangladesh Industrial Enter­prises (Nationalisation) Order, 1972

Bangladesh Krishi Bank Order, 1973

Bangladesh Law Officers Order, 1972

Bangladesh (Legal Proceedings) Order 1972

Bangladesh Madrasha Education Board (Governing Bodies And Managing Committees) Regulations, 1979

Bangladesh Madrasha Education Board Governing Bodies and Managing Committees Regulations, 1979

Bangladesh Passport Order, 1973

BANGLADESH POWER DEVELOPMENT BOARD (EMPLOYEES) SERVICE RULES, 1982

Bangladesh Public Service Commission (Consultation) Regulations, 1979

Bangladesh Red Crescent Society Order, 1973

Bangladesh Shilpa Rin Sangstha Order, 1972

Bangladesh Territorial Water and Maritime Zone Act, 1974

Bangladesh Transfer of Immovable Property (Temporary Provision) Order, 1972

Banking Companies Act, 1991

Bankruptcy Act, 1997

Bengal Tenancy Act, 1885

Bills of Lading Act, 1856

Carriage of Goods by Sea Act, 1925

Child Marriage Restraint Act, 1929

Code of Civil Procedure, 1908

Code of Criminal Procedure, 1898

Companies Act, 1913

Constitution of Bangladesh 1972

Constitution of Bangladesh 1972

Court Fees Act, 1870

Court of Wards Act, 1879

Delimitation of the Constituencies Ordinance, 1976

Dhaka University Order, 1973

Drugs (Control) Ordinance, 1982

Emergency Requisition of Property Act, 1948

Emigration Ordinance 1982

Evidence Act 1872 (Part-I)

Evidence Act 1872 (Part-II)

Evidence Act 1872 (Part-III)

Family Court Ordinace 1985

Financial Institutions Act, 1993

Financial Institutions Act, 1993

Foreign Exchange Regulation Act, 1947

General Clauses Act, 1897

Government Servants (Discipline and Appeal) Rules, 1985

Guardians and Wards Act, 1890

Hindu Law

Income Tax Act, 1922

Industrial Relations Ordinance, 1969

Industrial Relations Ordinance, 1969

Insurance Act, 1938

Intermediate & Secondary Education Ordinance, 1961

Local Government (Union Parishad) Election Rules, 1973

Local Government (Union Parishad) Ordinance, 1983

Local Government Union Parishad Ordinance, 1983

Local Government (Upazila Parishad & Upazila Administration Reorganisation) Ordinance 1982

Martial Law Order 9 of 1982

Mohamedan law

Muslim Family Laws Ordinance, 1961

Pourashava Ordinance, 1977

Pourashava Ordinance, 1977

Public Servants Retirement Act, 1974

Public Service Commission (Consultation) Regulations, 1979

Rajshahi University Act, 1973

Registration Act, 1908

Representation of the People Order, 1972

Service Regulation of the Teachers of Non-Government Degree College

Shilpakala Academy Act, 1989

Bangladesh Industrial Enterprises (Nationalisation) Order, 1972